J. H. Morgan was indicted in the Superior Court of DeKalb County for rape, and on his trial for that offense a jury returned the following verdict: "We, the jury, find the defendant guilty of assault with intent to rape and fix his punishment at a minimum of 4 years and a maximum of 8 years." Thereupon he was duly sentenced by the court. While the bill of exceptions recites, "the jury returned a verdict finding the defendant guilty, recommending mercy and fixing his sentence not less than ____ years minimum and ____ years maximum," and the trial judge certified the bill of exceptions to be true — it is well-settled law in this State that, where there is a conflict between the allegations of the bill of exceptions and the record, the record controls. Heath v. Miller, 197 Ga. 443 (29 S.E.2d 416); Johnson v. Sherrer, 197 Ga. 392, 398 (29 S.E.2d 581). Since it does not appear from the record that the defendant has been convicted of a capital offense or that this court otherwise has jurisdiction, jurisdiction is in the Court of Appeals and not in this Court, and the case is hereby
Transferred to the Court of Appeals. All the Justicesconcur.
No. 15552. JULY 3, 1946.