Harrington v. State, 37062

• Decision Date: 13 March 1958
• Docket Number: No. 2,No. 37062,37062,2
• Citation: 97 Ga.App. 315,103 S.E.2d 126
• Parties: Mary HARRINGTON v. The STATE
• Court: Georgia Court of Appeals

Page 126

103 S.E.2d 126

97 Ga.App. 315

Mary HARRINGTON v. The STATE.

No. 37062.

Court of Appeals of Georgia, Division No. 2.

March 13, 1958.

Syllabus by the Court

1. A motion in arrest of judgment in a criminal case must be predicated on a defect appearing on the face of the record. If the alleged defect occurs in the indictment or accusation it must be so substantial that the defendant, while admitting everything therein alleged as true, would still not be guilty of any offense. Where an accusation alleges the offense of maintaining a lottery known as bolita such allegation, construed in favor of the State, as it must be after verdict, imports a device in which a consideration is hazarded on the chance of a prize. The accusation here was not so defective as to be subject to attack by a motion in arrest of judgment.

2. Under the Statewide Probation Act (Code Ann.Supp., Ch. 27-27) any person having knowledge of facts constituting a violation of a probationary sentence may make affidavit thereto before any officer authorized by law to issue warrants; the latter shall issue a warrant for the arrest of the defendant returnable to the court in which such defendant was prosecuted and sentenced, and the court after hearing the case and revoking the order of probation at any time before the probated sentence has expired according to its terms may require that the defendant serve the full sentence within a public works camp or other place of detention, and not merely the unexpired time remaining of the sentence as originally rendered.

3. The evidence was sufficient to authorize the revocation of the probationary feature of the sentence on the grounds that the defendant possessed illegal liquor and knowingly associated with other persons possessing such liquors.

Mary Harrington pleaded guilty in the City Court of Americus to an accusation charging that she 'did then and there unlawfully and with force and arms keep, maintain and operate a lottery known as bolita, contrary to the laws of said State, the good order, peace and dignity thereof.' She was given a 12 months' sentence in a public works camp, the sentence stating the imprisonment would be 'suspended' upon payment of a fine and the conditions stated therein that she should demean herself as an upright citizen, engage in honorable employment, not have, make, sell, drink or deal with intoxicating beverages, not associate with any person who has, makes, sells, drinks or deals in such liquors, and not violate any laws of the State. The defendant paid her fine and was set at liberty. Thereafter a police officer swore to an affidavit before a local justice of the peace that he 'makes known to the City Court of Americus that he had knowledge that Mary Harrington, a probationer, has violated her probation' by possessing and associating with another who possessed illegal liquor. The justice of the peace then issued a warrant directing that the defendant be arrested and taken 'forthwith before the City Court of Americus, the court granting such probation, to be dealt with as the law directs.' She was then arrested and taken before the judge of the city court, released on bond, and a date set for hearing on the revocation of probation. The defendant filed a motion in arrest of the original judgment, at the same term in which it had been rendered, contending that the accusation under which she had been sentenced set out no offense against her. The court denied this motion and after hearing evidence revoked the probationary feature of the sentence and required the defendant to serve the full twelve months. Exceptions are to the denial of the motion in arrest of judgment; to an objection to the affidavit and warrant for arrest on the ground that no petition had been filed in the city court seeking to revoke the probation; and to the judgment of revocation and sentence requiring that the full 12 months be served beginning as of the date of revocation rather than the date of the original sentence.

R. L. LeSueur, Jr., R. L. LeSueur, Americus, for plaintiff in error.

Claude N. Morris, Sol., Americus, for defendant in error.

TOWNSEND, Judge.

1. Code, § 26-6502 provides: 'Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor.' The accusation alleged that the defendant kept 'a lottery known as bolita' and did not allege that the same was a scheme and device for the hazarding of money or other valuable thing. If this accusation is void, so that the defendant could admit the truth of every allegation therein and still not be convicted, a motion in arrest of judgment would lie. Rambo v. State, 25 Ga.App. 390, 103 S.E. 494; Butts v. State, 46 Ga.App. 174(1), 167 S.E. 209; Hilliard v. State, 87 Ga.App. 769, 75 S.E.2d 173. One cannot waive his right to insist on a trial on an indictment perfect in form and substance, take his chances of acquittal, and after conviction urge defects in the indictment which are not so great as to render it absolutely void. Gravitt v. State, 36 Ga.App. 301, 136 S.E. 829; Foy v. State, 40 Ga.App. 617, 150 S.E. 917. The defendant was accused of operating a lottery, and if it is possible to operate a lottery without hazarding money or other thing of value the objection might...