Gunn v. State

244 Ga. 51 (1979)

257 S.E.2d 538

GUNN v. THE STATE.

34842.

Supreme Court of Georgia.

Submitted April 27, 1979.

Decided July 2, 1979.

Rehearing Denied July 17, 1979.

James T. Irvin, for appellant.

V. D. Stockton, District Attorney, Michael H. Crawford, Assistant District Attorney, Arthur K. Bolton, Attorney General, William B. Hill, Jr., Assistant Attorney General, for appellee.

BOWLES, Justice.

Appellant was indicted in Stephens County along with Bleckley O'Bryn Morris and Glenda Garner for the offense of armed robbery. Upon conviction he filed a motion for new trial in the lower court which was overruled and he now appeals to this court.

1. He complains that the trial court erred in denying his motion to suppress an alleged confession made by him. In the course of the trial, the court conducted a Jackson v. Denno hearing in which the court concluded that his confession was freely and voluntarily given. There being ample evidence presented in the trial court to support its determination, it will not be disturbed on appeal.

2. Appellant complained for the first time in his motion for new trial that Code Ann. § 26-1902 (Ga. L. 1968, p. 1249 et seq., as amended in Ga. L. 1969, p. 1810 et seq., and Ga. L. 1976, p. 1359), is unconstitutional in that such law violates provisions of Art. I, Sec. II, Par. IV and Art. I, Sec. I, Par. XIV of the Constitution of Georgia of 1976, and the Eighth Amendment of the United States Constitution. A constitutional attack on a criminal statute of this state cannot be raised for the first time in a motion for new trial. Corbin v. State, 212 Ga. 231, 233(7a) (91 SE2d 764) (1956). See also Thrall v. State, 226 Ga. 308 (174 SE2d 925) (1970).

Irrespective of the procedural deficiencies in *52 appellant's case, the statute in question does not violate the cited constitutional provisions for any of the reasons argued. Knight v. State, 243 Ga. 770 (1979).

Judgment affirmed. All the Justices concur.