Crymes v. State
| Decision Date | 27 November 1935 |
| Docket Number | No. 25123.,25123. |
| Citation | 52 Ga.App. 195,182 S.E. 856 |
| Parties | CRYMES. v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A motion to set aside and vacate a verdict is not an available remedy to a defendant who was, together with his sole counsel, absent from court at the reception of the verdict against him. In such a case, a motion for new trial is proper.
a. However, it appears that the evidence was sufficient for the trial judge to rule that the defendant had waived his rights in this respect, in that he was present and heard one who purported to act for him agree to an "open verdict, " and made no objection thereto.
2. A trial judge has no authority, in this state on his own motion, and in the absence of such motion by the defendant, to grant him a new trial, of a crime, and such action will be reversed on exception by the defendant.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
D. H. Crymes was convicted of involuntary manslaughter, his motion to vacate and set aside the verdict was denied, a new trial was granted, and he brings error.
Affirmed, with direction.
Etheridge, Belser, Etheridge & Ethe-ridge, of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., and J. Walter Le Craw, both of Atlanta, for the State.
1. The defendant was tried and convicted of involuntary manslaughter. Thereafter and at the same term of court the defendant filed a motion to vacate and set aside the verdict and to discharge him. This motion was based on the complaint that neither he nor his sole counsel was present at the reception of the verdict and that his right in this respect had not been waived. The motion was heard and evidence introduced before the trial judge. It appears that the defendant was tried and when the jury retired to make a verdict another case was called for trial. When that trial was completed (it being time for the court to adjourn for the day), it was agreed by the attorneys in this last-mentioned case that an "open verdict" be received. In other words, it was agreed that the verdict be received by the clerk in the absence of the parties and the trial judge. The court then desired to know if the same agreement could be reached in reference to the defendant's case. The clerk thereupon called the attention of the court to the fact that Mr. Laney, an attorney, was with the defendant, and the court inquired of Mr. Laney if he would agree to an open verdict, to which he answered, "Sure, sure." Now it appeared that Mr. Paul S. Etheridge was the sole employed counsel for the defendant, and that at the time this agreement was made Mr. Etheridge was voluntarily absent from the court. However, Mr. Laney, who was an uncle of the defendant, had sat with Mr. Etheridge throughout the trial and conferred with Mr. Etheridge from time to time during the examination of the witnesses, although he declined, at Mr. Ethe-ridge's request, to associate himself in the case or argue it. It was from these facts that the court concluded that Laney was of counsel and allowed him to agree to an "open verdict" for defendant. Upon the question of whether the defendant was present in the courtroom and in hearing distance of Mr. Laney when he made the agreement for him, the evidence conflicted. The trial judge, however, refused to sustain the motion to vacate and set aside the judgment on the ground that the defendant was present at the time, but without a motion therefor did grant the defendant a new trial on the ground that the defendant had not waived the presence of his sole counsel. The defendant excepts both to the refusal of the trial judge to vacate and set aside the verdict, and also to his action in granting him a new trial without a motion therefor.
The court, as a trior of fact, was certainly authorized to find that the defendant was present and heard the agreement made by Mr. Laney with the court. Under the circumstances that Mr. Laney was a well-known practicing attorney and also the uncle of the defendant, had been present all through the trial and had helped strike the jury and had sat with the defendant and his counsel, Mr. Etheridge, and had advised with them during the progress of the trial, an agreement by him in the presence and hearing of the defendant waiving the necessity of the defendant's and the court's presence at the reception of the verdict, was, in effect, a waiver by the defendant, and he should not thereafter be heard to say that he did not agree thereto. Certainly, if Mr. Laney was his counsel, there could be no question that such an agreement made by him in the presence of the defendant was binding on him and would...
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