Opinion
28687.
ARGUED MARCH 11, 1974.
DECIDED APRIL 4, 1974.
Theft by taking. Spalding Superior Court. Before Judge Whalen.
Weiner Bazemore, Paul S. Weiner, Terrell A. Abernathy, for appellant.
Ben J. Miller, District Attorney, for appellee.
After the defendant's prior conviction was reversed by the Court of Appeals in Marchman v. State, 129 Ga. App. 22 ( 198 S.E.2d 425), a new indictment was returned which resulted in a second conviction. The appeal is from such judgment. It is contended that jurisdiction of this appeal is in this court, rather than the Court of Appeals, because of the "constitutional questions raised by defendant's plea of former jeopardy ... motion for change of venue, plea in abatement and challenge to the array of the traverse jurors and motion to suppress evidence..." Held:
No attack has been made upon the constitutionality of any statute nor is the construction of the Constitution involved in any of the above listed pleas and motions made in the trial court, but the application of the State and Federal Constitutions to the facts in the appellant's case is involved. Under such circumstances, since the case does not involve an appeal from the conviction of a capital felony, jurisdiction of the appeal is in the Court of Appeals and not the Supreme Court. Harrold v. State, 217 Ga. 612 ( 124 S.E.2d 73); Pollard v. State, 229 Ga. 698 ( 194 S.E.2d 107).
Transferred to the Court of Appeals. All the Justices concur.