1assiter v. The State Of Ga.

• Decision Date: 30 September 1881
• Parties: 1assiter . vs. The State of Georgia.
• Court: Georgia Supreme Court

67 Ga. 739

1assiter . vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Criminal Law. Indictment. Verdict. Practice in the Superior Court. Witness. Before Judge HILLYER. Fulton Superior Court. April Term, 1881.

In addition to the report contained in the decision it is only necessary to add the following

John Lassiter was indicted for the offence of burglary, for that he, on the 7th day of February, 1881, did break and enter with force and arms the store-house of Mark Berry, of said county, where valuable goods were stored, with intent to steal, and breaking and entering the same, did take, steal, and carry away, with intent to steal the same, one pair of boots of the value of five dollars and of the personal goods of said Berry.

Defendant demurred to the indictment; the demurrer was overruled, and after trial of the case upon its merits, a verdict of guilty was rendered. Defendant moved for a new trial, which was overruled, whereupon he excepted.

E. A. Angier; John G. Coldwell, for plaintiff in error.

B. H. Hill, Jr., solicitor general, by brief, for the state.

Speer, Justice.

1. The plaintiff in error was indicted for the offence of burglary, of which he was convicted. He made a motion for a new trial, which was overruled by the court, and heexcepted. On the arraignment of the accused, his counsel demurred to the indictment upon the ground, "that it failed to allege whether the offence charged was committed in the day or night, and failed to specify the alleged felony defendant intended to commit. " The demurrer was overruled by the court, and prisoner excepted. The indictment shows that the offence was clearly and distinctly set forth in the language of the Code, and that is all the law requires. Code, §§4628, 4386. Since the act of 1879 all distinction between burglary in the day and night time has been abolished, and this supersedes the necessity of alleging (as was formerly the case) whether the offence was committed in the day or night. There is now but one offence of burglary known to the law of this state. Acts of 1878-9, page 65. The demurrer was, therefore, properly overruled.

The first ground of the motion for the new trial was the error assigned on overruling the demurrer.

2. The 2d, 3d, 4th and 5th grounds, which were that the verdict was contrary to law, contrary to evidence, as to the venue of the offence, against the evidence and weight of evidence, are overruled, as, in our opinion, the evidence was sufficient to sustain the verdict, and is not contrary to law.

3. As to the 6th ground, " that the verdict was received in the absence of both defendant's counsel, " the court adds the following note in reference to this ground of the motion: " The court met at the appointed time, and the jury having made up their verdict came into the box. The prisoner was present; the court called for the counsel, they were not present and did not respond; they had no leave of absence, and the business of the court was very large and time pressing, and the court felt that it would be wrong and setting a bad precedent to wait on the prisoner's counsel; and the court ordered the clerk to call the jury, which he did, and they all answered to their names in the regular manner. The court directed the solicitor general to receive the verdict; the foreman handed.it to him, and he read it aloud; just as he did so, and before handing it to the clerk, Mr. Coldwell, one of the prisoner\'s counsel, came in, and the court stated to him what had occurred, and asked him to present...