Opinion
17651.
SUBMITTED NOVEMBER 13, 1951.
DECIDED JANUARY 15, 1952.
Misdemeanor; constitutional question. Before Judge Heery. Savannah City Court. August 10, 1951.
Aaron Kravitch, for plaintiff in error.
Andrew J. Ryan, Solicitor-General, Sylvan A. Garfunkel and Kirk M. McAlpin, contra.
Where a demurrer to a criminal accusation is overruled, exceptions pendente lite are taken, and no plea is filed to the merits of the charge and no final termination of the case is made, it is still pending; and rulings on the exceptions pendente lite are not reviewable by writ of error, as they are prematurely brought.
No. 17651. SUBMITTED NOVEMBER 13, 1951 — DECIDED JANUARY 15, 1952.
This case, from the City Court of Savannah, was transferred to this court by the Court of Appeals, since there are exceptions sought to be raised as to the constitutionality of Code § 66-102.
The accused was charged with a violation of the law under the foregoing Code section, in that he failed to pay certain specified wages. To the accusation a general demurrer was interposed, and also demurrers asserting the section to be in violation of specified constitutional provisions. To the overruling of the demurrers exceptions pendente lite were taken. There was no trial under the issues made by the accusation. The demurrer was overruled August 10, 1951, and exceptions pendente lite were filed and allowed August 16, 1951. The present bill of exceptions was presented and certified August 17, 1951.
It is the duty of this court upon its own motion to raise the question of its jurisdiction in all cases. Rowland v. State, 199 Ga. 340 ( 34 S.E.2d 577), and citations. Where pendente lite exceptions are filed, the ruling on demurrer is reviewable only after the termination of the case, in a bill of exceptions assigning error on the final judgment. Durrence v. Waters, 140 Ga. 762 ( 79 S.E. 841); Newton v. Roberts, 163 Ga. 135 ( 135 S.E. 505); Gilbert v. Tippens, 183 Ga. 497 ( 188 S.E. 699); Carpenter v. State, 194 Ga. 395 ( 21 S.E.2d 643); Smith v. Barksdale, 199 Ga. 723 ( 35 S.E.2d 149); Crews v. Crews, 207 Ga. 273 ( 61 S.E.2d 144). The ruling on demurrer having been excepted to pendente lite, and there having been no termination of the case, which is still pending, the writ of error is prematurely brought.
This rule of practice will not result in injury to the accused. If convicted, a review of the rulings on demurrer may be had by assigning error on the exceptions pendente lite in a bill of exceptions to the final judgment.
Writ of error dismissed. All the Justices concur.