Appellant was sentenced to a term of imprisonment upon conviction by a jury in a Georgia court of first instance of an attempt to incite insurrection by endeavoring to induce others to join in combined resistance to the authority of the state to be accomplished by acts of violence, in violation of section 56 of the Penal Code of Georgia. The supreme court of the state affirmed the judgment. 178 Ga. 832, 174 S.E. 597, rehearing denied, 179 Ga. 597, 176 S.E. 620, 622. On this appeal, the statute is assailed as contravening the due process clause of the Fourteenth Amendment in certain designated particulars. We find it unnecessary to review the points made, since this court is without jurisdiction for the reason that no federal question was seasonably raised in the court below or passed upon by that court.
It is true that there was a preliminary attack upon the indictment in the trial court on the ground, among others, that the statute was in violation 'of the Constitution of the United States,' and that this contention was overruled. But, in addition to the insufficiency of the specification, the adverse action of the trial court was not preserved by exceptions pendente lite or assigned as error in due time in the bill of exceptions, as the settled rules of the state practice require. In that situation, the state supreme court declined to review any of the rulings of the trial court in respect of that and other preliminary issues; and this determination of the state court is conclusive here. John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 58 L.Ed. 381; Atlantic Coast Line R. Co. v. Mims, 242 U.S. 532, 535, 37 S.Ct. 188, 61 L.Ed. 476; Nevada-California-Oregon Ry. v. Burrus, 244 U.S. 103, 105, 37 S.Ct. 576, 61 L.Ed. 1019; Brooks v. Missouri, 124 U.S. 394, 400, 8 S.Ct. 443, 31 L.Ed. 454; Central Union Co. v. Edwardsville, 269 U.S. 190, 194, 195, 46 S.Ct. 90, 70 L.Ed. 229; Erie R. Co. v. Purdy, 185 U.S. 148, 154, 22 S.Ct. 605, 46 L.Ed. 847; Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 308, 23 S.Ct. 375, 47 L.Ed. 480.
The federal question was never properly presented to the state supreme court unless upon motion for rehearing; and that court then refused to consider it. The long-established general rule is that the attempt, to raise a federal question after judgment, upon a petition for rehearing, comes too late, unless the court actually entertains the question and decides it. Texas, etc., R. Co. v. Southern Pacific Co., 137 U.S. 48, 54, 11 S.Ct. 10, 34 L.Ed. 614; Loeber v. Schroeder, 149 U.S. 580, 585, 13 S.Ct. 934, 37 L.Ed. 856; Godchaux Co. v. Estopinal, 251 U.S. 179, 181, 40 S.Ct. 116, 64 L.Ed. 213; Rooker v. Fidelity Trust Co., 261 U.S. 114, 117, 43 S.Ct. 288, 67 L.Ed. 556; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 454, 455, 44 S.Ct. 197, 68 L.Ed. 382, and cases cited.
Petitioner, however, contends that the present case falls within an exception to the rule-namely, that the question respecting the validity of the statute as applied by the lower court first arose from its unanticipated act in giving to the statute a new construction which threatened rights under the Constitution. There is no doubt that the federal claim was timely if the ruling of the state court could not have been anticipated and a petition for rehearing presented the first opportunity for raising it. Saunders v. Shaw, 244 U.S. 317, 320, 37 S.Ct. 638, 61 L.Ed. 1163; Ohio v. Akron Park District, 281 U.S. 74, 79, 50 S.Ct. 228, 74 L.Ed. 710, 66 A.L.R. 1460; Missouri v. Gehner, 281 U.S. 313, 320, 50 S.Ct. 326, 74 L.Ed. 870; Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 677-678, 50 S.Ct. 451, 74 L.Ed. 1107; American Surety Co. v. Baldwin, 287 U.S. 156, 164, 53 S.Ct. 98, 77 L.Ed. 231, 86 A.L.R. 298; Great Northern R. Co. v. Sunburst Co., 287 U.S. 358, 367, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 254. The whole point, therefore, is whether the ruling here assailed should have been anticipated.