concur, except Jordan, J., who concurs specially., Transferred to the Court of Appeals. All the Justices

Joseph H. Briley, District Attorney, Arthur K. Bolton, Attorney General, for appellee.Rice & Lawrence, George D. Lawrence, Jr., for appellant.

Eddie Collins was convicted of rape, kidnapping, and armed robbery. He received a life sentence for the rape conviction and two fifteen-year sentences for the other two crimes to run concurrently. His appeal to this court was docketed July 7, 1977.

1. This court must inquire into its own jurisdiction. Carparking, Inc. v. Chappell's, Inc., 213 Ga. 637 (100 SE2d 896) (1957); Dade County v. State of Ga., 233 Ga. 117 (210 SE2d 659) (1974). In our opinion the rationale of Coker must be applied also to armed robbery and kidnapping. See Eberheart v. State (two death sentences for rape and kidnapping with bodily injury) affirmed 232 Ga. 247 (206 SE2d 12) (1974); reversed Eberheart v. Georgia, ---- U. S. ---- (No. 74-5174, decided June 29, 1977). [1] Therefore the death penalty may not be imposed for these crimes under present Georgia statutes. It follows that there can be no "conviction of a capital felony" for these crimes within the meaning of the constitutional provision establishing the jurisdiction of the Supreme Court. "In our view the expression 'capital felony,' when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same." Caesar v. State, 127 Ga. 710, 712 (57 SE 66) (1906) (Emphasis supplied.) We conclude that convictions of rape, kidnapping and armed robbery under present Georgia statutes are no longer convictions of capital felonies for appellate jurisdictional purposes and jurisdiction of these appeals lies in the Court of Appeals.

In the interests of orderly administration, this court exercises its inherent power and directs that this ruling be effective with other cases docketed on and after August 1, 1977.

3. To effectuate the legislative intent of Act No. 299, Ga. L. 1977, p. 710, discussed above, this court has today adopted the following order: "The Court of Appeals is hereby directed and ordered, upon docketing in the Court of Appeals, to transfer to this court for review the following types of cases: (1) Cases involving the revenues of the state, (2) Election contests, and (3) Cases in which the constitutionality of any municipal or county ordinance or other legislative enactment is drawn into question. This order shall be effective as to cases docketed in the Court of Appeals on and after the 1st day of August, 1977."

On and after August 1, 1977, and until further order, cases involving the revenues of the state, election contests and cases in which the constitutionality of any municipal or county ordinance or other legislative enactment is drawn into question should be docketed in the Court of Appeals from which they will be transferred for review to this court. On the other hand, on and after August 1, 1977, rape, armed robbery and kidnapping cases shall be docketed in the Court of Appeals.

JORDAN, Justice, concurring specially.

There can be no doubt that Coker v. Georgia, 433 U. S. ---- (97 SC 2861, 53 LE2d ----) (1977), eliminated the death penalty for rape of an adult where the victim is not killed. Apparently, Eberheart v. Georgia, 433 U. S. ---- (97 SC 53 LE2d ----) (1977), eliminated the death penalty for kidnapping of an adult where death to the victim does not result. The purpose of this special concurrence is to point out that neither of these cases appears to prevent the imposition of the death penalty for rape or kidnapping under any and all circumstances.

For instance, several states now have statutes providing for the death penalty for rape of a minor child. Those statutes were not involved in Coker and must be considered valid unless and until they are held unconstitutional by a proper tribunal. Likewise, the kidnapping with violence of an infant or minor for ransom was not considered under the factual situation in Eberheart, supra.

In my opinion it is still possible for the General Assembly to enact clearly defined and restricted death penalty statutes dealing with the crimes of rape and kidnapping of a minor child where the treatment of the victim is outrageously vile, horrible or inhuman, or where other aggravating circumstances exist, even though the victim be left short of death. As pointed out in the opinion, we only hold that the "death penalty may not be imposed for these crimes under present Georgia statutes." (Emphasis supplied.)

Note: Pursuant to direction from the Supreme Court opinions will not be published in the following three (3) habeas corpus cases. Rule 32 (k), Supreme Court Rules.

1977

Notes:

1. "The petitioner in this case was sentenced to death.