Davis v. State

13 S.E.2d 351, 191 Ga. 558, 1941 Ga. LEXIS 333

• Court: Supreme Court of Georgia
• Decided: February 12, 1941
• Docket: 13463.
• Status: Published

Opinion

Jenkins, Justice.

1. While the defendant in error has made no motion to dismiss the writ of error, “it is not only the right but the duty of a reviewing . . court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” Welborne v. State, 114 Ga. 793, 796 (40 S. E. 857); Milner v. Sunbeam Heating Co., 44 Ga. App. 221 (2) (160 S. E. 822), and cit.

No. 13463. February 12, 1941. Chalmers Chapman, for plaintiff in error. Ellis G. Arnall, attorney-general, J. Cedi Davis, solicitor-general, C. E. Sutton, E. J. Glower and G. E. Gregory Jr., assistant attorneys-general, contra.

2. The striking on motion of a plea of former jeopardy is not a final judgment within the meaning of the Code, § 6-701, from which a bill of exceptions assigning error thereon will lie. McElroy v. State, 123 Ga. 546 (51 S. E. 596); Blackwell v. State, 46 Ga. App. 830 (2) (169 S. E. 507), and cit. Heard v. State, 45 Ga. App. 375 (164 S. E. 467).

3. Even though the bill of exceptions discloses that there has been a final conviction, and even though there is an assignment of error on exceptions pendente lite to the striking of a plea of former jeopardy, the writ of error must be dismissed in the absence of an assignment of error on the final judgment. Rabhan v. Rahban, 185 Ga. 355, 357 (195 S. E. 193), and cit.; Thurmond v. State, 59 Ga. App. 333 (2) (200 S. E. 807), and cit. Writ of error dismissed.

All the Justices concur.