Johnson v. State, 51190
| Decision Date | 24 November 1975 |
| Docket Number | No. 3,No. 51190,51190,3 |
| Citation | 136 Ga.App. 719,222 S.E.2d 181 |
| Parties | L. S. JOHNSON et al. v. The STATE |
| Court | Georgia Court of Appeals |
Alvin L. Bridges, Jr., Decatur, for appellants.
Richard Bell, Dist. Atty., David R. Rogers, Asst. Dist. Atty., Decatur, for appellee.
Defendants were convicted of aggravated assault and thereafter sentenced. Motion for new trial was filed and denied. Defendants appeal. Held:
1. This case was heard before the judge without the intervention of a jury. Thereafter the judge retired to his chambers with counsel and reviewed the testimony with them. Upon the return to the courtroom the judge stated: 'After reviewing the testimony with counsel in my Chambers, after having considered the evidence carefully, at this time, I am going to find both defendants guilty on the aggravated assault charge.' Defense counsel contends that since it is the legal right of a person accused of a crime in this State to be present at all stages of his trial, the judge erred in reviewing the evidence in his chambers with only the counsel present, citing Wade v. State, 12 Ga. 25; Lyons v. State, 7 Ga.App. 50, 55, 66 S.E. 149; Wilson v. State, 212 Ga. 73, 75, 90 S.E.2d 557.
The trial was over, and the conference was tantamount to the consideration of the case by the jury. In such instances, defendants are never allowed in the jury room. Nor for that matter are counsel for plaintiffs or defendants.
If it be a mere review of the evidence, it was error. Wade v. State, 12 Ga. 25(2), supra. If it be the argument stage, it was a part of the trial, and the defendant has the right to be present during the entire trial. See cases cited in Seay v. State, 111 Ga.App. 22, 25(3), 140 S.E.2d 283; Wilson v. State, 212 Ga. 73, 75, 90 S.E.2d 557, supra. While this case was not tried in the ordinary manner in that a jury trial was waived; nevertheless, the judge was both judge and jury, and the defendant is entitled to be present when the evidence is discussed by the judge with the lawyers in accord with law and good practice and to see and hear what is going on and what is being done in the case.
So here we have a defendant with error committed against him, in that the judge, opposing counsel, and his own counsel discussed and reviewed the evidence in the absence of defendant with the judge acting as jury. Defendant made no objection because he was not a lawyer, not skilled in trial of cases, and perhaps did not even know that what was being done was erroneous. His own lawyer was agreeably participating in the error, and now defendant makes the point that he was 'robbed of his rights' for the first time in this court, which he is not allowed to do. See Anderson v. State, 129 Ga.App. 1(2), 198 S.E.2d 329. It therefore appears that under our rules of procedure the defendant has been wronged but is without a remedy, and we reluctantly hold that what was done was done in such fashion that it cannot be held to be reversible error.
2. The defendants fled the scene after the alleged commission of the crimes with which they were charged. As a result of this effort to conceal...
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Watkins v. State
...of the defendant and his counsel. Wade v. State, 12 Ga. 25, 28 (1852); Green v. State, 43 Ga. 368, 373 (1871); Johnson v. State, 136 Ga.App. 719(1), 222 S.E.2d 181 (1975). In our opinion, it was error for the trial judge to permit the testimony of appellant to be replayed to the jury in the......
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Bishop v. State, 72510
...L.Ed.2d 353; 21A Am.Jur.2d 104, Crim.L. § 693), except where counsel discusses the evidence with the judge in chambers. Johnson v. State, 136 Ga.App. 719, 222 S.E.2d 181; see also Watkins v. State, 237 Ga. 678, 229 S.E.2d 465. But, this latter right may be waived. Daugherty v. State, 225 Ga......
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Wilson v. State, s. 72381-72383
...has the right to be present during all stages of his trial, this right may be waived absent a timely objection. Johnson v. State, 136 Ga.App. 719(1), 222 S.E.2d 181. In the cases sub judice, although the defendants had a right to be present during the hearing on their pre-trial motions, bec......
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Terrell v. State
...726; Hutchins v. State, 229 Ga. 804, 805(1), 194 S.E.2d 442; C.A.J. v. State of Ga., 127 Ga.App. 813, 195 S.E.2d 225; Johnson v. State, 136 Ga.App. 719, 222 S.E.2d 181. The majority opinion is well-reasoned and well written, and I concur in it fully, with the minor exception pointed out ...