Smith v. State

39 S.E.2d 313, 201 Ga. 200, 1946 Ga. LEXIS 441

Opinion

This case falls clearly within the recognized rule that the Court of Appeals and not the Supreme Court has jurisdiction of cases "which involve mere application of unquestioned and unambiguous provisions of the Constitution to a given state of facts." White v. State, 196 Ga. 847, 849 (27 S.E.2d 695), and cases cited. This case is therefore

Transferred to the Court of Appeals. All the Justicesconcur.

No. 15540. SEPTEMBER 4, 1946. STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE. On a trial in the Criminal Court of Fulton County under an indictment for the alleged operation of a lottery, the defendant filed a motion "to challenge the trial judge on the ground that [he] had stepped aside from his impartial position as presiding judge and become a prosecutor in said case." The motion was overruled, and the trial before a jury resulted in the conviction of the defendant. In a petition for certiorari to the Superior Court of Fulton County, error is assigned on the overruling of such motion on the ground that the defendant was denied due process of law and equal protection under the 14th amendment to the Constitution of the United States, in that he was not afforded a fair trial before an impartial and unbiased judge. Error is also assigned upon the admission of certain evidence over objection, upon certain charges to the jury and the refusal of certain requested charges, and upon the overruling of a motion for a mistrial based on certain arguments of the solicitor alleged to have been improper. The defendant in his bill of exceptions to this court assigned as error the order of the superior court denying the writ of certiorari.