
    Griggs v. The State.
    Argued May 22,
    Decided August 13, 1906.
    Indictment for running freight-train on Sunday. Before Judge Fite. Dade superior court. March 23, 1906.
    
      Payne & Tye, Charles A. Read, and J. P. Jacotvay, for plaintiff in error,
    cited: Civil Code, § 5784; Ga. R., 8/210; 9/253; 13/83; 23/74; 42/516; 44/649; 66/222; 70/390; 90/396; 110/433; 114/60; 120/781; 58 Ill. 254; 36 N. E. 4; 6 Am. & Eng. Enc. L. 955-7.
    
      ■Sam P. Maddox, solicitor-general,
    
    cited Civil Code, §§ 5732, 6030; 137 U. S. 296; Cooley’s Const. Lim. 353, 393; 116 U. S. 446; 120 Ib. 489; 128 Ib. 129; 139 Ib. 104; 153 Ib. 289.
   Beck, J.

1. Section 420 of the Penal Code, which prohibits the running of freight-trains on the Sabbath, does not apply to a railroad which begins and ends in other States and which does not run a distance greater than thirty miles in this State. Acts 1897, p. 38; Acts 1899, p. 88.

2. The constitutionality of a statute can not be questioned in this court when it does not appear that such question was made in the lower court.

3. It appearing that the defendant was convicted of running a freight-train on Sunday on a railroad which begins and ends in other States than Georgia, and that the road is not more than thirty miles long in this State, the verdict was without evidence to support it, and a new trial should have been granted.

Judgment reversed.

All the Justices concur, except Wish, O. J., absent.  