dissenting.
The trial judge sentenced the defendant to twelve *421months imprisonment and suspended same conditioned upon defendant’s moving outside six named counties and not returning, and not using the public streets or highways of said six counties, without the court’s permission during the next 12 months. The state moved to revoke the suspended sentence because of alleged violation of its terms; and defendant moved to dismiss the petition to revoke, "on the ground that the sentence herein is illegal and void constituting a sentence of banishment.”
Both the majority and dissenting opinions heretofore filed discuss the legality of suspended sentences, etc., and cite many authorities. To me, this does not seem to be the question involved, but rather the question is whether defendant’s attack upon the motion to revoke is sustainable, that is, was "the sentence herein ...illegal and void constituting a sentence of banishment ”? (Emphasis supplied.) Defendant’s appeal therefore is, and must be, limited to the question of whether the original sentence was a sentence of banishment and therefore illegal.
The only prohibition against banishment as punishment for crime is found, not in statute law, but in constitutional law, to wit, Code Ann. § 2-107 (Const, of 1945). Defendant made no attack in the lower court on the sentence as violating his constitutional rights. It has been held times without number that a constitutional attack will not be considered by the appellate courts unless the attack was made in the lower court, and cannot be raised for the first time on appeal. Marter v. State, 224 Ga. 569 (2) (163 SE2d 702); Roberts v. Roberts, 226 Ga. 203 (6) (173 SE2d 675).
Both the majority opinion and previously filed dissenting opinion discuss theories and defenses which were not advanced by defendant in the lower court, and were not relied on or insisted upon by him in said lower court. This we are not allowed to do. The Supreme Court of Georgia plainly held in Clark v. Baker, 186 Ga. 65, 69 (196 SE 750), "We ought not and will not pass on a theory not advanced.” Also see Archer v. Gwinnett County, 110 Ga. App. 442, 445 (138 SE2d 895); Phillips v. State Farm &c. Co., 121 Ga. App. 342, 347 (173 SE2d 723).
*422But another fatal stumbling block confronts defendant, for that the sentence shows his activities were curtailed in six counties only, not in the whole of the State of Georgia. The language of the constitutional provision, Art. I, Sec. I., Par. VII (Code Ann. § 2-107) provides the following as to banishment for crimes, to wit: "Neither banishment beyond the limits of the State, nor whipping, as a punishment for crime, shall be allowed.” (Emphasis supplied.) Hence, the present sentence, not purporting to banish the defendant beyond the limits of the state (but merely beyond the limits of six counties) is not a sentence of banishment within the purview of the above constitutional provision.
But even though the Constitution of Georgia expressly provides that punishment for crime shall not include banishment beyond the limits of the state, the majority have contrived to convince themselves that punishment for crime shall not include banishment beyond the limits of a county!
Why not? There is nothing in our Constitution which inhibits banishment beyond the limits of a county as punishment for crime. Nor is there any decision by the appellate courts of Georgia which inhibits banishment beyond the limits of a county as punishment for crime.
Where, then, does the majority find excuse for saying that banishment beyond a county is inhibited in Georgia? They cite no Georgia case, no Georgia statute, no Georgia constitutional provision. But they go to Corpus Juris Secundum, American Jurisprudence and to the decisions of the courts of New York, Maryland, and California (mostly from California), and they finally reach their destination by way of the "public policy” route; and argue that even though Georgia has no statute, no appellate court decisions, and no constitutional provision inhibiting banishment beyond a county as punishment for crime, that public policy will not tolerate this form of punishment.
But what is Georgia’s public policy? What makes up the elements of public policy in Georgia? Surely, the majority knows that we do not go to California, nor do we go to New York, nor do we go to Maryland, to determine what the public policy of Georgia is. Those *423other states are concerned with their own public policy, and not with ours. Each state determines its own public policy. Some states legalize gambling, but gambling is against our statutes and against public policy in Georgia. Some states legalize prostitution and bawdy houses, but such is against our statutes and public policy in Georgia.
Our appellate courts have spelled it out plainly, distinctly, and unmistakably, so that even a wayfaring man cannot be misled; public policy is made up in Georgia by the statutes of Georgia, by the appellate court decisions in Georgia, and by the Constitution of Georgia. "The only authentic and admissible evidence of public policy of a state is its constitution, laws, and judicial decisions.” Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (3) (72 SE 295); Bishop v. Act-O-Lane Gas, 91 Ga. App. 154, 165 (85 SE2d 169). (Emphasis supplied.) Therefore, the lengthy decisions from California on public policy quoted by the majority relate to public policy of California, not Georgia.
Where does that leave the majority opinion in this case? The majority admits that Georgia has no statute, has no judicial decisions and has no constitutional provisions which inhibit banishment beyond a county as punishment for crime. Therefore, Georgia has no public policy against same. On the theory of public policy depends the entire thrust of the majority opinion, and it is therefore without any basis whatever.
To illustrate the absurdity of going to another state to determine what is the public policy of Georgia, some states could probate a sentence conditioned upon defendants’ spending the time in a house of prostitution, another state could probate sentence on condition defendant spend the time in a gambling-house. Georgia could not legally do that because prostitution and gambling are against our statutes and such a sentence would therefore be void as against public policy. Our public policy is made in Georgia, not in California, not in Nevada, or elsewhere.
The majority argues that there is no statute in Georgia which expressly permits banishment from a county as punishment for crime. We reply that there is no statute in Georgia which expressly forbids banishment from a county as punishment for crime. Nor is there a *424statute in Georgia which expressly permits a court to bar an attorney from practicing law during his service of a probated sentence, nevertheless the court has that power. Yarbrough v. State, 119 Ga. App. 46 (2) (166 SE2d 35). Nor is there a statute which expressly permits a judge to impose a restriction against defendant communicating with his wife during service of a probated sentence; nevertheless the court has such right. Gay v. State, 101 Ga. App. 225 (1) (113 SE2d 223). Also see George v. State, 99 Ga. App. 892, 893 (109 SE2d 883). The foregoing authorities also hold that the court has authority to impose restrictions not specifically listed in the statute.
More to the point, Code Ann. § 27-2711 specifically authorizes imposition of a condition in probation that the prisoner "remain within a specified location. ” That is what was done in the case sub judice; the trial judge named certain counties in which defendant could not use streets and highways during his period of probation. In Henry v. State, 77 Ga. App. 735, 737 (49 SE2d 681) it is held that as to conditions in probated sentence, the trial court may mould the sentence allowing defendant to serve outside jail, or other place of detention under supervision of court, "and in such manner and on such conditions as it may see fit. ” Also see Cross v. Huff, 208 Ga. 392 (67 SE2d 124).
Finally, let us go back to the constitutional provision which provides that punishment for crime shall not include banishment beyond the limits of the state.
What was the message the framers of our Constitution transmitted in this language? Undoubtedly, they meant that banishment beyond the limits of a county was not inhibited. " Inclusio unius est exclusio alteráis” — (The inclusion of one is the exclusion of the other) is an ancient and honorable legal phrase which is quite meaningful and helpful in construing legal language. If "county” had been intended, they would have said "county. ” But having said "state, ” the inclusion of that broad term excluded the more narrow term "county.” Crossing a state line may often have vastly different and more serious consequences than the mere crossing of a county line.
I would affirm the judgment of the lower court for *425all of the reasons hereinabove set forth.
Addendum to Dissent.
Evans, Judge.After an "en banc” hearing, the majority does not now dispute our contention that there is at present no public policy in Georgia against banishment beyond the limits of a county as punishment for crime. The majority now argues that such should be the public policy of Georgia and that the decision in this case will help to establish future public policy for the State of Georgia in this respect. But on what authority is the majority deciding the present case? Admittedly, at this moment Georgia has no constitutional provision, no statute, and no judicial decisions inhibiting banishment beyond a county as punishment for crime. As our public policy is made up of our Constitution, our statutes, and our judicial decisions (see Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (3) (72 SE 295) Bishop v. Act-O-Lane Gas, 91 Ga. App. 154, 165 (85 SE2d 169)), and as we have none on this subject at this moment, then it follows that Georgia’s public policy does not forbid banishment beyond a county as punishment for crime. The majority has reached its conclusion and its destination without any supporting authorities. If one were to start at the present point (this decision reached by the majority opinion) and begin to climb downward towards the earth, at the halfway point he would find his ladder non-existent; and he would wonder what supports the top half of the ladder.