Phillips v. State , 229 Ga. 313 ( 1972 )

229 Ga. 313 (1972) 191 S.E.2d 61

PHILLIPS
v.
THE STATE.

27136.

Supreme Court of Georgia.

Argued April 10, 1972. Decided June 28, 1972.

Alfred D. Fears, Byrd, Groover & Buford, Denmark Groover, Jr., for appellant.

Edward McGarity, District Attorney, Sorrells, Hearn & Childers, George J. Hearn, III, William R. Childers, Jr., for appellee.

HAWES, Justice.

"Constitutional questions which have been finally and conclusively determined by decisions of this court cannot again be urged so as to invoke the jurisdiction of this court. The Court of Appeals has jurisdiction to apply such decisions where review is sought of the same constitutional question. In such instances the Court of Appeals, and not the Supreme Court, has jurisdiction of the writ of error. Morgan County v. Craig, 213 Ga. 742 (101 SE2d 714)." Continental Cas. Co. v. Bump, 218 Ga. 187, 190 (126 SE2d 783). In the instant appeal the asserted basis for the jurisdiction of the appeal in the Supreme Court is that the appeal draws into question the constitutionality of a statute of this State. From the brief of appellant, it appears that he seeks to question the constitutionality of Code § 89-9907 which makes malpractice in office by any ordinary, member of any board of commissioners, county judge, or justice of the peace a crime punishable as a misdemeanor and by removal from office. The basis of the attack is that the expression, "malpractice in office," is too vague, indefinite and uncertain to inform one charged with the offense with sufficient specificity as to the acts constituting a violation of that section so as to meet the constitutional requirements of due process. Counsel requests that we review and overrule the full bench decision of Cargile v. State, 194 Ga. 20 (2) (20 SE2d 416), which decided this issue adversely to appellant's contentions. In the case of Steele v. State, 227 Ga. 653, 656 (182 SE2d 475) which was argued before this court at the April term, 1971, and decided on June 2, 1971, the identical question and request was urged by the appellant there and rejected by this court. Under the principles first announced, the other questions sought to be presented by the appeal can be decided by the Court of Appeals by the mere application of unquestioned and unambiguous provisions of the Constitution and the Code section to the facts as shown by the evidence. The Court of Appeals and not this court has jurisdiction of the appeal. See Huguley v. State, 225 Ga. 191 (167 SE2d 152), and Crowder v. Dept. of State Parks, 227 Ga. 143 (179 SE2d 231).

Transferred to the Court of Appeals. All the Justices concur, except Gunter, J., who dissents.