Opinion
13461.
SEPTEMBER 25, 1940.
Indictment for robbery. Before Judge Perryman. Warren superior court. June 6, 1940.
Randall Evans Jr., Jack D. Evans, James R. Evans, and L. D. McGregor, for plaintiff in error.
Ellis G. Arnall, attorney-general, J. Cecil Davis, solicitor-general, C. E. Sutton, Duke Davis, and C. E. Gregory, contra.
The defendant filed to his indictment for a capital felony a plea in abatement, attacking the qualifications and procedure of the grand jurors in the return of the indictment. After rulings striking certain portions of the plea on demurrer by the State, the issues of fact raised by the unstricken parts were tried by a special jury, which returned a verdict "against the plea in abatement." The defendant brought to this court a bill of exceptions assigning error on the refusal of a new trial from this verdict alone, and on exceptions pendente lite to the ruling on the plea. This procedure not presenting a case "of conviction of a capital felony" or any constitutional question such as under art. 6, sec. 2, par. 5, of the constitution (Code, § 2-3005), would give this court jurisdiction, the writ of error with its exceptions relating to the plea in abatement must be transferred to the Court of Appeals. See Humphrey v. State, 175 Ga. 666 ( 165 S.E. 587), and cit.; Wilburn v. State, 140 Ga. 138, 140 ( 78 S.E. 819); Ruffin v. State, 151 Ga. 743, 744 ( 108 S.E. 29); Coleman v. George, 140 Ga. 619 (2), 621 ( 79 S.E. 543); Bashinski v. State, 123 Ga. 508 (2), 510 ( 51 S.E. 499); Western Atlantic R. Co. v. Williams, 146 Ga. 27 ( 90 S.E. 478); McDow v. State, 113 Ga. 699 ( 39 S.E. 295); Boisclair v. State, 92 Ga. 453 ( 17 S.E. 270).
Transferred. All the Justices concur.