Tiller v. State

• Decision Date: 10 October 1968
• Docket Number: No. 24724,24724
• Citation: 164 S.E.2d 137,224 Ga. 645
• Parties: Charles Weaver TILLER v. The STATE.
• Court: Georgia Supreme Court

Page 137

164 S.E.2d 137

224 Ga. 645

Charles Weaver TILLER v. The STATE.

No. 24724.

Supreme Court of Georgia.

Oct. 10, 1968.

Hester & Hester, Frank B. Hester, Burruss, Bell & Nylen, Stanley Nylen, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., Carter Goode, Amber W. Anderson, J. Walter LeCraw, Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

The Court of Appeals has requested an answer to the following certified question: 'Where a defendant in a criminal case does not complain of the giving or the failure to give an instruction to the jury prior to the jury verdict or in his motion for new trial, does this court have jurisdiction to consider the question? See Section 17 of the Appellate Practice Act of 1965, as amended; Ga.L.1968, pp. 1072, 1078; Calhoun v. State, 211 Ga. 112 (84 S.E.2d 198); Harris v. State, 114 Ga. 436(3) (40 S.E. 315); Hennon v. State, 62 Ga.App. 485, 486 (7 S.E.2d 921); Cason v. State, 60 Ga.App. 626(4) (4 S.E.2d 713); Code Ann. § 6-702.'

The Supreme Court and the Court of Appeals are charged with the duty of correcting errors of law (Const.1945, Art. VI, Sec. II, Par. IV, Code Ann. § 2-3704; Const.1945, Art. 6, Section 2, Par. 8, Code Ann. § 2-3708) and as succinctly stated in Ga.L.1968, pp. 1072, 1078, 'the appellate court shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.' This section has been in the Appellate Practice Act since its adoption in 1965 (Ga.L.1965, pp. 18, 31; Ga.L.1966, pp. 493, 498; Code Ann. § 70-207); and jurisdiction of the question in such a case is acquired by an enumeration of error under the Appellate Practice Act of 1965 (Ga.L.1965, pp. 18, 20; Ga.L.1966, pp. 493, 494; Code Ann. § 6-702), when such error is not included in a motion for new trial. Gunter v. State, 223 Ga. 290, 293, 154 S.E.2d 608; Williams v. State, 223 Ga. 773, 775, 158 S.E.2d 373; Pippins v. State, 224 Ga. 462, 162 S.E.2d 338.

However, if such error is included in a motion for new trial, the ruling on the motion for new trial will become the law of the case unless on appeal the ruling on the motion for new trial is enumerated as error or the ruling on the motion for new trial is specifically appealed from in the notice of appeal. The mere showing in the notice of appeal of the date on which the motion for new trial was filed and ruled on is not sufficient.

Therefore, if such error is included in the motion for new trial, jurisdiction of the question for decision by the appellate court is acquired in either of two ways: First, by specifically appealing from the ruling on the motion for new trial in the notice of appeal and presenting such error in the charge in an enumeration of error, or, second, by filing the notice of appeal from other appealable judgments and enumerating as error the ruling on the motion for new trial.

This ruling is consistent with Hill v. Willis, 224 Ga. 263, 268(4), 161 S.E.2d 281, and Bryan v. State, 224 Ga. 389, 390(1), 162 S.E.2d 349, where the rulings on the motions for new trial were neither appealed from nor enumerated as error. Foskey v. Kirkland, 221 Ga. 773(2), 147 S.E.2d 310.

The answer to the question is in the affirmative.

Certified question answered.

All the Justices concur, except FRANKUM, J., who dissents.

FRANKUM, Justice (dissenting).

I dissent from that portion of the majority opinion which holds that an appellant may file a notice of appeal from an appealable judgment other than the overruling of his motion for a new trial and enumerate as error the ruling on the motion for a new trial occurring subsequent to the entry of the judgment appealed from. This ruling seems to be directly in conflict with the full bench decision of this court in the case of Graham v. Haley, 224 Ga. 498, 500(4), 162 S.E.2d 346, which was decided by this court only at the last term. Under the Appellate Practice Act, where an appeal is taken from a final judgment or from any other judgment from which an appeal is authorized under the Act, 'all judgments, rulings or orders rendered in the case which are raised on appeal and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order appealed from was final or was appealable by some other express provision of law.' As pointed out by Judge Pannell in his dissent in Allen v. Rome Kraft Company, 114 Ga.App. 717, at page 722, 152 S.E.2d 618, the only difference between the present law and the prior law is in the words 'raised on appeal' and the words 'assigned as error' in the prior law. There is no substantial...