Tiller v. State

Undercofler, Justice.

The Court of Appeals has requested an answer to the following certified question: “Where a defendant in a criminal ease does not complain of the giving or the failure to give an instruction to the jury prior to the jury verdict or in his motion for new trial, does this court have jurisdiction to consider the question? See Section 17 of the Appellate Practice Act of 1965, as amended (Ga. L. 1968, pp. 1072, 1078); Calhoun v. State, 211 Ga. 112; Harris v. State, 114 Ga. 436 (3); Hennon v. State, 62 Ga. App. 484, 486; Cason v. State, 60 Ga. App. 626 (4); Code Ann. § 6-702.”

The Supreme Court and the Court of Appeals are charged with the duty of correcting errors of law (Const. 1945, Art. VI, Sec. II, Par. IV; Code Ann. § 2-3704; Art. VI, Sec. II, Par. VIII; Code Ann. § 2-3708) and as succinctly stated in Ga. L. 1968, pp. 1072, 1078, “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” This section has been in the Appellate Practice Act since its adoption in 1965 (Ga. L. 1965, pp. 18, 31; Ga. L. 1966, pp. 493, 498; Code Ann. § 70-207); and jurisdiction of the question in such a case is acquired by an enumeration of error under the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 20; Ga. L. 1966, pp. 493, 494; Code Ann. § 6-702), when such error is not included in a motion for new trial. Gunter v. State, 223 Ga. 290, 293 (154 SE2d 608); Williams v. State, 223 Ga. 773, 775 (158 SE2d 373); Pippins v. State, 224 Ga. 462 (162 SE2d 338).

However, if such error is included in a motion for new trial, the ruling on the motion for new trial will become the law of the case unless on appeal the ruling on the motion for *646new trial is enumerated as error or the ruling on the motion lor new trial is specifically appealed from in the notice of appeal. The mere showing in the notice of appeal of the date on which the motion for new trial was filed and ruled on is not sufficient.

Argued July 9, 1968 Decided October 10, 1968. Hester & Hester, Frank B. Hester, Stanley H. Nylen, Burruss & Nylen, for appellant. Lewis B. Slaton, Solicitor General, Carter Goode, Amber W. Anderson, J. Walter LeCraw, for appellee.

Therefore, if such error is included in the motion for new trial, jurisdiction of the question for decision by the appellate court is acquired in either of two ways: First, by specifically appealing from the ruling on the motion for new trial in the notice of appeal and presenting such error in the charge in an enumeration of error, or, second, by filing the notice of appeal from other appealable judgments and enumerating as error the ruling on the motion for new trial.

This ruling is consistent with Hill v. Willis, 224 Ga. 263, 268 (4) (161 SE2d 281) and Bryan v. State, 224 Ga. 389, 390 (1) (162 SE2d 349), where the rulings on the motions for new trial were neither appealed from nor enumerated as error. Foskey v. Kirkland, 221 Ga. 773 (2) (147 SE2d 310). The answer to the question is in the affirmative.

Certified question answered.

All the Justices concur, except Frankum, J., who dissents.