Hardeman v. State, 272 Ga. 361 ( 529 S.E.2d 368) (2000).Hardeman, 272 Ga. at 362, quoting Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380) (1971). There being no other issues germane to this appeal that vest it within this Court's jurisdiction, it is hereby transferred to the Court of Appeals.
Moreover, even assuming that Boswell ever constituted viable authority for a criminal defendant's use of a motion in arrest of judgment to contest the constitutionality of the statute under which he was prosecuted, that case long-since has been overruled implicitly by our subsequent decisions holding that such an attack "must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury." Brackett v. State, 227 Ga. 493 (2) ( 181 S.E.2d 380) (1971). We have consistently adhered to this requirement that a constitutional challenge must be made as soon as possible and certainly before the return of the guilty verdict.
Constitutional attacks "must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury." Brackett v. State, 227 Ga. 493 (2) ( 181 S.E.2d 380) (1971). See also Gainey v. State, 232 Ga. 334 ( 206 S.E.2d 474) (1974).
1. Defendant's first enumeration of error alleges that the trial court erred in overruling his constitutional attack. Constitutional challenges must be raised at the first opportunity. Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380) (1971). Constitutional challenges should be raised as soon as the law which is subject to constitutional objection comes to the attention of the challenger's attorney.
We hold that Gilbert's administrative release under the 1969 law canceled the continuing presumption under Code ยง 38-118 although the prior adjudication is evidence tending to show his mental condition and can be considered by the fact finder. Accord, Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380). While here the transcript does not contain any release order, Gilbert testified he was released by the state hospital and does not claim any irregularity therein.
Under repeated rulings of the court the constitutional question, presented for the first time in the defendant's motion for new trial, was not timely raised so as to confer jurisdiction of the appeal upon the Supreme Court. See Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380); Woods v. State, 222 Ga. 321 (1) ( 149 S.E.2d 674). The appeal is within the jurisdiction of the Court of Appeals and not this court.
It is well settled that such questions must be raised at the first opportunity and cannot be raised for the first time in this court. Brackett v. State, 227 Ga. 493 (2) ( 181 S.E.2d 380); Robinson v. State, 226 Ga. 461 ( 175 S.E.2d 505); Woods v. State, 222 Ga. 321 (1) ( 149 S.E.2d 674). 3. The appellant contends that the trial judge was "involved in self-admitted ex parte extrajudicial conversations with former members of the traverse jury which convicted the appellant" and neither he nor his counsel knew of such conversations until the trial judge stated he had talked with some of them before he imposed sentence on the appellant.
4. Where a special plea of insanity is filed and a jury trial had thereon, which verdict is adverse to the defendant, and the main case is not immediately thereafter tried, whether the defendant will be permitted to have another jury trial on a second special plea of insanity is a matter within the sound discretion of the trial court. Compare Flanagan v. State, 103 Ga. 619 ( 30 S.E. 550); Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380). This enumeration of error is without merit. 5. A challenge to the array of the traverse jury was made and overruled.
Green v. State, 124 Ga. App. 469 ( 184 S.E.2d 194). The present complaint contends that the conviction should be set aside inasmuch as he was tried after the effective date of the Act of 1970 providing for bifurcated trials (Ga. L. 1970, pp. 949, 950; Code Ann. ยง 27-2534), and relies upon the decision of this court in Todd v. State, 228 Ga. 746 ( 187 S.E.2d 831). The trial court found that the prisoner was represented by employed counsel on the trial and on the appeal and that the failure to raise such question there constituted a waiver as to such question relying upon Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380).
Accordingly, this question is not properly before the court. See Mitchum v. Stynchcombe. 227 Ga. 226 (3) ( 179 S.E.2d 919); Brackett v. State, 227 Ga. 493 (2) ( 181 S.E.2d 380); Ford v. Herbermann, 227 Ga. 751 ( 183 S.E.2d 204). However, the examination by the physicians appointed by the court was not such an interrogation as to come within the mandate of decisions exemplified by Powell v. Alabama, 287 U.S. 45 ( 53 S.C. 55, 77 LE 158, 84 ALR 527) and United States v. Wade, 388 U.S. 218 ( 87 S.C. 1926, 18 L.Ed.2d 1149).