Herndon v. Georgia, 295 U.S. 441 (1935)

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Herndon v. Georgia

No. 665

Argued April 12, 1935
Decided May 20, 1935
295 U.S. 441

APPEAL FROM THE SUPREME COURT OF GEORGIA

Syllabus

1. An attack upon a statute upon the ground that it is in violation "of the Constitution of the United States," without further specification, does not raise a federal question. P. 442.

2. A ruling of a state trial court sustaining an indictment against preliminary attack, which the Supreme Court of the state declined to consider because the ruling was not preserved in a bill of exceptions or assigned as error, as required by the settled state practice, cannot be considered here, upon review of the latter court’s judgment, as a basis for raising a federal question. P. 443.

3. An attempt to raise a federal question before a state supreme court upon a petition for rehearing after judgment is too late unless the court actually entertains the question and decides it. P. 443.

4. But a federal question first presented to the state court by petition for rehearing is in time if it could not have been raised earlier because the ruling of that court to which it is directed could not have been anticipated. P. 444.

5. A ruling is not to be regarded as unanticipated by the party where it is one that follows an earlier decision of the same court in a similar case. P. 446.

Appeal from 178 Ga. 832, 174 S.E. 597; 179 Ga. 597, 176 S.E. 620, dismissed.

Appeal from the affirmance of a conviction under an indictment charging Herndon with an attempt to incite insurrection by endeavoring to induce others to join in combined resistance to the authority of the state in violation of § 56 of the Penal Code of Georgia.