Syllabus
by the Court.
Defendant
and his counsel, who participated in receiving verdict
without having made previous motion for mistrial, waived
objection that jury were disabled from returning verdict by
fact that new term convened during deliberations.
Every
known fact which is ground for mistrial must be taken
advantage of before verdict.
To
sustain motion in arrest of judgment, defects must be fatal
and must appear from record (Pen. Code 1910, § 980).
In
prosecution for rape, admission of bloody shirt found at home
of another, whom defendant was charged with having aided in
committing crime, held not error, where
prosecutrix' testimony tended to identify shirt as that
of assailant.
Ground
of motion for new trial must be approved without
qualification to receive Supreme Court's consideration.
Where
principals in first and second degrees are punished alike, no
distinction between them need be made in indictment.
Proof
that defendant merely aided another in committing rape
held sufficient to warrant conviction, though
indictment charged defendant as principal in first degree.
Failure
to charge jury on Code sections relative to weight of
testimony held not error (Pen. Code, 1910, §§ 1012,
1013).
1. The
questions raised in the bill of exceptions and in the motion
for new trial, on the demurrer to the indictment, the plea in
abatement, and the challenge to the array of jurors, are
controlled by the principles ruled in Haden v. State, --
Ga. --, 168 S.E. 272.
2. The
court did not err in overruling the motion to vacate and set
aside the verdict and sentence of the court for the reasons
stated by the movant in the second division of the opinion.
3. On
the trial of the case, it was not error to admit in evidence
over defendant's objection, a shirt found at the house of
Charles Haden, the day after the alleged crime was committed
having thereon certain blood spots; Haden being the principal
in the offense of rape, as charged by the state.
4. A
ground of a motion for new trial, in order to be considered
by the Supreme Court, must be approved without qualification.
5.
"Where principals in the first and second degrees are
punished alike, no distinction between them need be made in
the indictment. The act of one is the act of all." In
this state there is no difference between the punishment of a
principal in the first degree and that of a principal in the
second degree; and, where this is true, a principal in the
second degree may be convicted on an indictment charging him
separately as principal in the first degree.
6.
Ground 6 of the motion for new trial, complaining of the
refusal of a request to charge the jury as there set out
shows no error.
7. The
failure to give in charge to the jury Penal Code (1910) §§
1012 and 1013, was not erroneous.
8. The
verdict was authorized by the evidence, and the judge did not
err in refusing a new trial.
Error
from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Ross
Hatcher, Jr., was convicted of rape, and he brings error.
Affirmed.
ATKINSON,
J., dissenting.
HILL
Justice.
Ross
Hatcher, Jr., was indicted, tried, and convicted of the
offense of rape, and was sentenced to death by electrocution.
He made a motion for new trial, which was overruled, and he
excepted.
1. The
questions raised in the bill of exceptions in the motion for
new trial, on the plea in abatement, the demurrer to the
indictment, and the challenge to the array of jurors, are
controlled by the principles ruled in Haden v. State, --
Ga. --, 168 S.E. 272.
2. The
defendant filed a motion to arrest, vacate, and set aside the
verdict and sentence of the court. The motion appears in the
record as follows: "Comes now the defendant, Ross
Hatcher, Jr., and files this his motion to arrest and set
aside the judgment and sentence of the court entered on the
second day of November, 1931, upon the following grounds, to
wit: (1) Because the verdict finding this defendant guilty
and the judgment and sentence entered thereon are null and
void, for the following reasons: This defendant was formally
arraigned and pleaded not guilty to the indictment, and his
trial was entered upon at the September special term, 1931,
of Bibb superior court, and on the 29th day of October
thereof. The trial continued from day to day until the 31st
day of October, 1931, when the cause was submitted to the
jury, and the jury retired and entered upon their
deliberations on the evening of the 31st day of October,
1931; and thereafter and while the said jury were
deliberating, and before they returned their verdict, the
said special term was finally adjourned, as appears by the
minutes of the court, said minutes containing the following
entries on the 31st day of October, 1931, to wit; 'The
special September term adjourned this 31st day of October,
1931.' 'The September term this day adjourned.'
'The court this day adjourned until court in course.'
The court having finally adjourned for the term, the further
deliberation of the jury and the verdict returned by them
were illegal and null and void, and the judgment and sentence
based on said verdict is likewise null and void, and should
be arrested and set aside. While the Honorable Malcolm D.
Jones, the judge of the Macon Circuit, who presided at said
special term, has not signed the minutes, this is in keeping
with the practice of the said judge, who appears not to have
signed any minutes not only of the said special term but at
any of the preceding regular terms over which he
presided." (2) "Because the verdict finding this
defendant guilty, and the judgment and sentence entered
thereon are null and void, for the following reasons: This
defendant was formally arraigned and pleaded not guilty to
the indictment, and this trial was entered upon at the
September special term, 1931, of Bibb superior court, and on
the 29th day of October thereof. The trial continued from day
to day until the 31st day of October, 1931, when the cause
was submitted to the jury, and the jury retired and entered
upon their deliberations on the evening of the 31st day of
October, 1931. The regular November term of said court is
fixed by law to convene on the first Monday in November, and
on the said first Monday in November, 1931, being the 2d day
of November, the Honorable Malcolm D. Jones, judge of the
Macon Circuit, who had presided at the said September special
term, convened the November term at ten o'clock a. m. The
said court was regularly organized, the grand jury empaneled
and sworn, and the said judge delivered his charge to the
grand jury; the traverse jurors were empaneled and sworn; and
the organization of the court was completed in every
particular. After the convening of the court and its
organization, and while the said November term was in regular
session, the jury to whom had been submitted the case of The
State v. Hatcher and which had retired to consider their
verdict on Saturday, October 31, 1931, during the September
special term of said court, came into court and rendered
their verdict, finding this defendant guilty. When it was
announced that the jury had made a verdict, counsel for the
defendant called the court's attention to the fact that
the November term had already convened, and that therefore
the verdict could not properly be received. The court replied
that the verdict could be received at the November term, and
directed the sheriff to bring in the jury. The jury were then
polled and were discharged for the term, the minutes of the
court showing the following entries: 'November term,
1931. Monday morning, November 2, 1931. The court met.
Present the Hon. Malcolm D. Jones, Judge, J. R. Hicks,
sheriff, V. H. Roberts, clerk. The sheriff having returned
the venire into court, the following named persons were this
day empaneled and sworn to serve as grand jurors. This 2nd
day of November, 1931.' Then follows the names of
twenty-two grand jurors. Immediately following on the said
minutes of November 2, 1931, is the following entry, to wit,
'The State v. Ross Hatcher Jr., No. 1469, Sept.
term, 1931, Bibb superior court. Plea, verdict, and sentence.
Jury sworn' (Entry of names of twelve jurors). This
defendant, Ross Hatcher, Jr., has been formally arraigned and
pleads not guilty. This Oct. 29, 1931. Chas. H. Garrett,
Solicitor-general. We, the jury, find the defendant guilty.
Nov. 2, 1931. Burt A. Schmidt, foreman' Then immediately
follows the judgment and sentence of the court: 'The
defendant Ross Hatcher, Jr., on the trial of the above stated
case at the present term of this court,' etc. The
November term of the court having convened and been regularly
organized, the September special term had expired as a matter
of law, and the jury who were then considering the case
against this defendant should have been discharged, and any
further deliberations on the part of the said jury after the
convening of the said November term and any verdict rendered
by them after the convening of the said November term was and
is void and of no effect. The attempt to continue the special
term after the regular term had convened in effect was an
effort to have two terms of the same court running at the
same time and presided over by the same judge, and any action
taken at the said special term, which had expired by its
limitation and because the regular term had actually
convened, as coram non judice, and the verdict and judgment
and sentence entered...
