Tant v. State

177 S.E.2d 484, 226 Ga. 761, 1970 Ga. LEXIS 673

• Court: Supreme Court of Georgia
• Decided: October 8, 1970
• Docket: 26023, 26024
• Status: Published

Opinions

Grice, Justice.

Each of these appeals is from the conviction and sentence for the unlawful possession of marijuana. The appellants contend that this court has jurisdiction because of “a challenge to the constitutionality of 79A Ga. Code 801, et seq., and 9901, et seq.”

However, upon oral argument we called to the attention of appellants’ counsel that the record in this court contains no motion, demurrer or other document making any constitutional attack upon any statute, and that upon our inquiry the record in the trial court contains none.

Subsequently, counsel for appellants sought in the trial court to perfect the record so as to include such a document, but it denied the motion. Its order stated in material part that “no demurrer/motion as described is of record or on file in the [trial court]. It further appearing that counsel did not physically tender to the court a demurrer/motion as set out.”

Thereafter, appellants filed in this court a motion to perfect the record so as to include such a document. Upon consideration the motion is denied.

It follows that we must adhere to the rule that, “This court will never pass upon the constitutionality of an Act of the General Assembly unless it clearly appears . . . that the point was directly and properly made in the court below and distinctly passed on by the trial judge.” Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813 (1) (184 SE 297); See also Savannah, Fla. & W. R. Co. v. Hardin, 110 Ga. 433, 437 (35 SE 681); West v. Frick Co., 183 Ga. 182 (2) (187 SE 868); Robinson v. McLennan, 224 Ga. 415 (162 SE2d 314); Walker v. Hall, 226 Ga. 68 (172 SE2d 411).

Since there is no basis for this court’s jurisdiction under the Constitution (Art. VI, Sec. II, Par. IV; Code Ann. § 2-3704) the cases are

Transferred to the Court of Appeals.

All the Justices concur, except Felton, J., who dissents. Albert M. Horn, for appellants. E. W. Fleming, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion 0. Gordon, Courtney Wilder Stanton, William B. Childers, Jr., Assistant Attorneys General, for appellee.