Cox v. State

On Petition foe Reheaeing.

Maetin, J.

The appellant says this court “erred in holding that the constitutionality of a statute cannot be presented on appeal under an assignment (of error) that the (trial) court erred in overruling appellant’s motion for a new trial, which motion alleged that the verdict of the jury was ‘contrary to law.’ ”

■ If the statute upon which an indictment or affidavit is based is unconstitutional, then such indictment or affidavit cannot state facts which constitute a public offense. “The question of whether an indictment states facts constituting a public offense should…