On Motion for Rehearing.
Gardner, P. J.A motion for a rehearing is made in this case by the defendant in the trial court, Rufus Smith, based on the grounds that there had actually been a final disposition of this case in the Superior Court of Franklin County by the judgment sustaining the general demurrer to his plea of former jeopardy *783and autrefois convict, and that this court, in dismissing the bill of exceptions assigning error on such judgment, erred in doing so on the stated ground that a judgment sustaining a general demurrer to such a plea is not a final disposition of the case in the trial court and not such a judgment as can be made the subject matter of a direct bill of exceptions to the appellate court having jurisdiction. It is true, as stated by the defendant in his motion for a rehearing, that our judgment dismissing the bill of exceptions is predicated on that part of Code § 6-701 which provides: “No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto,” which statute appeared in Irwin’s Revised Code of Georgia (1867), sec. 4191. See Ball & Co. v. Mayor &c. of Savannah, 9 Ga. 286; Hill v. Tift, 37 Ga. 564. It is contended by the defendant that the Supreme Court has “in at least two instances . . recognized that a . . direct bill of exceptions will lie where the plea of autrefois convict has been filed and a demurrer sustained thereto and error assigned on an order overruling and denying such plea.” The defendant cites Holt v. State, 38 Ga. 187, and Blair v. State, 81 Ga. 629 (7 S. E. 855) to sustain his contention thus made. In the Holt case, Holt was indicted for assault with intent to murder a named person, and thereafter made a demand for trial, and two terms having passed, at which proper juries to try the case were in attendance, the trial judge ordered the defendant “absolutely discharged and acquitted of the offense charged in the said indictment.” Thereafter, another indictment was found, charging the defendant with the offense of aggravated riot, and alleged that the defendant and others “feloniously and maliciously, with a loaded pistol, struck and beat and shot at” the person named in the indictment for assault with intent to murder, “a pistol being . . an instrument likely to produce death,” and upon arraignment the defendant pleaded autrefois acquit and also not guilty. The State demurred to the plea of former acquittal, which “the court sustained . . and overruled that plea, upon the ground that it *784was no bar to said trial.” The defendant “assigns as error the order overruling said plea of former acquittal.” In Blair v. State, supra, the Supreme Court affirmed the judgment of the trial court in striking on demurrer the defendant Blair’s plea of former conviction. It appears from the report of the case that the defendant excepted to the judgment dismissing and striking his plea. However, in neither of those cases was the question of the court’s jurisdiction raised. They are but physical precedents and are not authority for the proposition urged by the defendant in his motion for rehearing. In McElroy v. State, 123 Ga. 546 (51 S. E. 596), the Supreme Court ruled: “Until there has been a judgment finally disposing of the case in the trial court, the Supreme Court has no jurisdiction to pass upon an assignment of error complaining of the striking of a plea of former jeopardy, filed by the accused,” citing Fugazzi v. Tomlinson, 119 Ga. 622 (46 S. E. 831) and cit. In the Fugazzi case, the court held: “Until there has been in the trial court a judgment finally disposing of a case, this court is without jurisdiction to entertain a complaint that error was committed by the trial judge in striking, on demurrer, portions of the defendant’s answer,” citing several earlier Supreme Court decisions. See also Johnson v. Merchants &c. Bank, 141 Ga. 721 (81 S. E. 873); Hightower v. State, 22 Ga. App. 276 (95 S. E. 873); Fennell v. State, 46 Ga. App. 227 (167 S. E. 318); Blackwell v. State, 46 Ga. App. 830 (169 S. E. 507); Futch v. State, 37 Ga. App. 151 (139 S. E. 110); W. & A. R. v. Williams, 146 Ga. 27 (90 S. E. 478); English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). In Thurmond v. State, 59 Ga. App. 333 (200 S. E. 807), wherein this court held that “The assignment of error being on an order overruling a plea of former jeopardy and there being no exception to a final judgment, this court is without jurisdiction,” and the writ of error “must be dismissed,” it was also ruled that, “While the defendant in error has made no motion to dismiss the bill of exceptions, it is nevertheless the duty of this court to raise the question of its jurisdiction, and, when its lack of jurisdiction appears, to dismiss the bill of exceptions.” The court cited Blackwell v. State, supra. It appeared in the Thurmond case that “No exception to the final judgment is taken, and it does not appear from the record that the defendant was tried a second time.”
*785After carefully considering the defendant’s motion for a rehearing, and adding the foregoing to the opinion of this court in this case on rehearing, the motion for rehearing is denied. However, the defendant is allowed to file, in the court below, the official bill of exceptions to this court, as exceptions pendente lite.
Motion for rehearing denied.
Townsend and Carlisle, JJ., concur.