343 U.S. 541
72 S.Ct. 834
96 L.Ed. 1130
STEMBRIDGEv.STATE OF GEORGIA.
No. 474.
Argued April 22, 1952.
Decided May 26, 1952.

Mr. Marion W. Stembridge, pro se.
Mr. M. H. Blackshear, Jr., Atlanta, Ga., for respondent.
Mr. Justice MINTON delivered the opinion of the Court.


1
Petitioner was convicted of voluntary manslaughter for the fatal shooting of an eighteen-year-old woman in an altercation growing out of a business transaction. A second woman was wounded in the affray. At his trial, petitioner claimed that he killed the deceased in self-defense. The jury obviously did not believe him or it would not have found him guilty of voluntary manslaughter. He appealed to the Court of Appeals of Georgia which affirmed the conviction on July 12, 1950. Stembridge v. State, 82 Ga.App. 214, 60 S.E.2d 491. Certiorari to the Supreme Court of Georgia was denied.


2
Petitioner thereafter filed in the trial court what he called an 'Extraordinary Motion for New Trial.' This motion alleged that after the appellate proceedings above mentioned, petitioner for the first time, to wit, September, 1950, discovered new evidence which, had he known of and been able to use, would have resulted in his acquittal. He supported the motion with affidavits of ten of the jurors in the case stating that had this evidence been before them, they 'would have never agreed to any verdict except one of not guilty * * *.'


3
The newly discovered evidence consisted of a conflict between a written statement made by Mrs. Mary Harrison, the other woman who was shot in the affray, and her testimony at the trial. Petitioner could not contend that he was unaware of the existence of this statement because the police investigator who recorded it was cross-examined at length about the statement and its contents by petitioner's counsel at the trial. Petitioner claims only that he did not know of the conflict between the statement and Mrs. Harrison's testimony at the trial until after the trial was over. The statement was made by Mrs. Harrison in the hospital, shortly after she was shot. It is not sworn to. At least, there is no jurat exhibited as a part thereof. This statement, often referred to as a dying declaration, and the copy thereof remained at all times in the hands of the police. Since Mrs. Harrison did not die, the State could not use the statement as a dying declaration. Ga.Code, § 38—307 (1933).


4
The motion alleges that at petitioner's trial, Mrs. Harrison testified that he 'did go into the third room of the house and that he did shoot Emma Johnekin after he had already wounded her in the front of the house, and after she had seated herself on a trunk in this rear room.' The house where the shooting occurred consisted of three rooms, in line from front to rear, and a kitchen. The statement made by Mrs. Harrison while in the hospital, which is allegedly in conflict with her testimony, was 'and Emma (deceased) never got out of the front bed room until after the men (Stembridge and Terry) had already gone.'


5
This motion for a new trial based on newly discovered evidence was denied by the trial court. The Court of Appeals affirmed on the ground that the evidence was impeaching only and under the Georgia Code, § 70—204, was not the basis for the granting of a new trial. Stembridge v. State, 84 Ga.App. 413, 415 416, 65 S.E.2d 819, 821. This judgment was entered June 5, 1951.


6
Petitioner then filed a motion for rehearing in the Court of Appeals and for the first time attempted to raise the question of his federal constitutional rights under the Fourteenth Amendment. He contended that he had been denied equal protection and due process in that the State had used Mrs. Harrison's testimony to obtain his conviction with knowledge that it was perjured. The motion for rehearing was denied July 17, 1951, in these words: 'Upon consideration of the motion for a rehearing filed in this case, it is ordered that it be hereby denied.' On September 12, 1951, the Supreme Court of Georgia denied certiorari without opinion. On September 17, 1951, the Court of Appeals, at petitioner's request, stayed the remittitur for ninety days to enable him to apply to this Court for certiorari.


7
On October 22, 1951, petitioner sought and obtained from the Court of Appeals of Georgia an amendment of the record in the following words:


8
'In the consideration by this court of the rehearing which      raised the Federal question that 'the placing in this case,      by the State, of evidence known to be perjured seeks to      deprive plaintiff in error of liberty without due process of      law in violation of Section 2—103 of the Constitution of      Georgia and in violation of the 14th Amendment to the      Constitution of the United States,' this court considered the      constitutional question thus raised and decided it against      the contentions of the plaintiff in error. In so doing this      court considered Sec. 110—706 of the Code of Georgia of 1933      which provides as follows: 'Any judgment, verdict, rule or      order of court, which may have been obtained or entered up,      shall be set aside and be of no effect, if it shall appear      that the same was entered up in consequence of corrupt and      wilful perjury; and it shall be the duty of the court in which such verdict, judgment, rule or order was obtained      or entered up to cause the same to be set aside upon motion      and notice to the adverse party; but it shall not be lawful      for the said court to do so, unless the person charged with      such perjury shall have been thereof duly convicted, and      unless it shall appear to the said court that the said      verdict, judgment, rule or order could not have been obtained      and entered up without the evidence of such perjured person,      saving always to third persons innocent of such perjury the      rights which they may lawfully have acquired under such      verdict, judgment, rule, or order before the same shall have      been actually vacated and set aside'; and Burke v. State, 205      Ga. 656, et seq. (54 S.E.2d 350) which is a decision of the      Supreme Court of this State and is therefore binding on this      Court, and in which the Constitutional question raised by the      plaintiff in error was decided adversely to his contentions.      The decision of this Court on the rehearing in question being      adverse to the plaintiff in error necessarily brought into      consideration the question of whether the rights of the      plaintiff in error as guaranteed to him under the 14th      Amendment to the Constitution of the United States had been      violated, and such decision necessarily determined that such      rights had not been so violated. The decision by this court      denying the rehearing necessarily determined that the action      of the Solicitor General as shown by the record did not      deprive the plaintiff in error of any rights guaranteed to      him under the 14th Amendment of the Constitution of the      United States; also the decision of this court necessarily      applied the Fourteenth Amendment to the Constitution of the      United States to Sec. 110—706 of the Code of Georgia of 1933      and decided that its application in this case did not amount      to an abridgement of any of the rights of the plaintiff in error      guaranteed to him under the 14th Amendment to the      Constitution of the United States; and also that this Court      necessarily considered Burke v. State, 205 Ga. 656, (54      S.E.2d 350) which is a decision of the Supreme Court of this      State by which this Court is bound and which must be followed      by this Court, the effect of which is to hold that it does      not abridge any of the rights of the plaintiff in error      guaranteed to him under the 14th Amendment to the      Constitution of the United States.'


9
Review of this amending order, which purported to pass upon the constitutional question raised in the motion for rehearing, was not sought in the Supreme Court of Georgia. Instead, certiorari was sought here and granted. 342 U.S. 940, 72 S.Ct. 552.


10
First, since the Supreme Court of Georgia, which was the highest court of the state in which a decision could be had in this case, was not asked to pass upon and did not pass upon the purported amending order, we have no occasion to consider its effect.


11
Secondly, at the time the petition for certiorari was denied by the Supreme Court of Georgia, there appeared in the petition the following recital:


12
'This judgment and decision of the Court of Appeals in this      case in failing and refusing to decide applicant's case in      accordance with Sec. 2—3708 of the Constitution of Georgia      also violates article 1, sec. 1, par. 3 of the Constitution      of Georgia (Code § 2—103) and the Fourteenth Amendment to the      Constitution of the United States (Code Sec. 1—815); both of      which sections provide that no person shall be deprived of      his liberty without due process of law; and article 1, sec.      1, par. 2, of the Constitution of the State of Georgia and      the Fourteenth Amendment to the Constitution of the United States (Code § 1—815),      guaranteeing to all persons equal protection of the law.'


13
It is apparent from the record that the Supreme Court of Georgia took no action upon the question of federal constitutional rights raised for the first time on the motion for rehearing in the Court of Appeals. This was in accord with its rule that constitutional questions must first be raised in the trial court. Beckmann v. Atlantic Ref. Co., 181 Ga. 456, 182 S.E. 595. The attempt to raise the question of constitutional rights in the general terms of the above quotation from the petition for certiorari did not begin to meet the requirement of the Supreme Court of Georgia for definiteness. Persons v. Lea, 207 Ga. 384, 61 S.E.2d 832.


14
At this stage, the Supreme Court of Georgia could have denied certiorari on adequate state grounds. Where the highest court of the state delivers no opinion and it appears that the judgment might have rested upon a nonfederal ground, this Court will not take jurisdiction to review the judgment. Hedgebeth v. State of North Carolina, 334 U.S. 806, 68 S.Ct. 1185, 92 L.Ed. 1739; Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; McGoldrick v. Gulf Oil Corp., 309 U.S. 2, 60 S.Ct. 375, 84 L.Ed. 536; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Lynch v. People of New York ex rel. Pierson, 293 U.S. 52, 55 S.Ct. 16, 79 L.Ed. 191; Cuyahoga River Power Co. v. Northern Realty Co., 244 U.S. 300, 303 304, 37 S.Ct. 643, 644, 61 L.Ed. 1153; Adams v. Russell, 229 U.S. 353, 358—362, 33 S.Ct. 846, 848—849, 57 L.Ed. 1224; Allen v. Arguimbau, 198 U.S. 149, 154—155, 25 S.Ct. 622, 624, 49 L.Ed. 990; Johnson v. Risk, 137 U.S. 300, 307, 11 S.Ct. 111, 113, 34 L.Ed. 683; Klinger v. State of Missouri, 13 Wall. 257, 263, 20 L.Ed. 635.


15
The amending order of the Georgia Court of Appeals does not, in our view, change the posture of this case—it does not remove the strong possibility, in light of Georgia law, that the Supreme Court of Georgia might have rested its order on a nonfederal ground. We are without jurisdiction when the question of the existence of an adequate state ground is debatable. Bachtel v. Wilson, 204 U.S. 36, 27 S.Ct. 243, 51 L.Ed. 357.


16
The petition for certiorari was improvidently granted, and the case is dismissed. DP Dismissed.


17
Mr. Justice REED, concurring.


18
While I think the better course would be to affirm the decision of the Georgia courts, I join in the judgment of this Court.


19
Mr. Justice BLACK, Mr. Justice FRANKFURTER and Mr. Justice BURTON, dissent from the dismissal.

