Hilliard v. State, 34536
| Citation | 87 Ga.App. 769,75 S.E.2d 173 |
| Decision Date | 13 March 1953 |
| Docket Number | No. 2,No. 34536,34536,2 |
| Parties | HILLIARD v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the defendant entered a plea of guilty to a void accusation and the court rendered judgment thereon and pronounced sentence, the defendant's motion in arrest of such judgment, timely presented, was improperly overruled by the trial court.
On August 12, 1952, during the August term, 1952, of the City Court of Lexington, in the County of Oglethorpe, an accusation was sworn out against Hughes Hilliard, charging that the defendant 'in said county, on the 11th day of August, in the year of our Lord, Nineteen Hundred and Fifty Two, did then and there, unlawfully, and with force and arms, personally have in his possession apparatus usable for the distilling and manufacturing of alcoholic, spirituous, vinous and malt liquors and beverages, contrary to the laws of said State, the good order, peace and dignity thereof.' To this accusation Hilliard, on September 13, 1952, entered a plea of guilty. The court passed this sentence: Immediately after pronouncing the above sentence orally, the judge left the bench and the courtroom, without recessing or adjourning said court, and went directly to the office of the clerk of said court, which was on the first floor of the courthouse. The defendant's counsel, Fred A. Gillen, for the purpose of making a motion to allow the plea of guilty to be withdrawn, followed the judge, and immediately made such motion. The judge stated, 'Have you been misled by the court?' Attorney Gillen stated that he had not been misled by the court or any officer thereof, but that he 'was surprised.' The judge then stated: 'Under no circumstances will the plea be allowed withdrawn.' Thereupon, the defendant, on said date, before adjournment of the court filed his motion in arrest of judgment on the grounds (1) it appears from the record that no valid and sufficient accusation was filed against him; (2) that such accusation could not, after plea and sentence, be amended so as to charge the defendant with any offense under the law of the State and the rules prescribed by the act of 1899, p. 403, for the City Court of Lexington, and said judgment and sentence are in violation of the 8th Amendment to the United States Constitution, which provides: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted', and are in violation of the corresponding provisions of the State constitution. Code, § 1-808; Code Ann. § 2-109, Const. art. 1, § 1, par. 9. On October 27, 1952, the defendant made a written motion to set aside and vacate said judgment and sentence and enter a plea of not guilty, which the court denied. On the same day the defendant sued out a bill of exceptions to the Supreme Court of this State, in which he assigned error on the order denying his motion in arrest of the judgment and denying to him 'the right to withdraw said plea of guilty.' The defendant also assigned error in the bill of exceptions upon the order overruling the motion filed by him on October 27, 1952. The Supreme Court transferred the case to this court, on the ground that no constitutional question was involved.
Fred A. Gillen, Lexington, for plaintiff in error.
E. P. Shull, Solicitor, Lexington, for defendant in error.
As we view the questions presented by the record now before this court, we are confronted with this question: Can a defendant be lawfully sentenced in a misdemeanor case, where he enters a plea of guilty to an accusation which is void, in that therein no offense is charged? This brings up for determination whether or not the accusation stated an offense. Code, § 58-209 provides: It seems that the gravamen of the offense charged under this statute is to knowingly have, possess or locate on one's premises such apparatus. The accusation should even describe the premises. See Johnson v. State, 152 Ga. 270(2), 109 S.E. 673. The apparatus must be found on the defendant's premises and in his possession or control or in the control or possession of some one permitted by him to have the same. See Johnson v. State, supra; Johnson v. State, 79 Ga.App. 210, 53 S.E.2d 498, 499. In the latter case this court ruled: (Italics ours.) In the body of the decision this court said: ...
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Walker v. State
...Criminal Law § 495 (1965); Brisson v. Warden of Connecticut State Prison, 25 Conn.Sup. 202, 200 A.2d 250 (1964); Hilliard v. State, 87 Ga.App. 769, 75 S.E.2d 173 (1953).3 I.C. § 19-4201 and 19-4215; Higheagle v. State, 91 Idaho 921, 435 P.2d 261 (1967); Carey v. State, 91 Idaho 706, 429 P.2......
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...to the legality of the indictment. See, e.g., Ponder v. State , 121 Ga.App. 788, 789, 175 S.E.2d 55 (1970) ; Hilliard v. State , 87 Ga.App. 769, 771-772, 75 S.E.2d 173 (1953) ; and Rambo v. State , 25 Ga.App. 390, 103 S.E. 494 (1920), each of which was cited as authority in State v. Howell ......
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