Kincade v. State

• Decision Date: 14 May 1914
• Docket Number: 5,516.
• Citation: 81 S.E. 910,14 Ga.App. 544
• Parties: KINCADE v. STATE.
• Court: Georgia Court of Appeals

81 S.E. 910

14 Ga.App. 544

KINCADE v. STATE.

No. 5,516.

Court of Appeals of Georgia

May 14, 1914

Syllabus by the Court.

The court did not err in overruling the demurrer to the indictment.

Every person indicted for an offense against the laws of this state, unless he waives arraignment, is entitled as matter of right to be arraigned before pleading to the indictment. When arraigned, either one or both of two issues may be presented for determination--an issue of law or an issue of fact. The issue of law is for decision by the court, the issue of fact by the jury. When a defendant demurs to an indictment, he presents an issue of law. If the court decides this issue against him, he may then present his issue of fact in a plea of not guilty. Before either issue is presented, he is entitled to be arraigned, unless arraignment is waived. When the defendant pleads without arraignment, he thereby waives this formality. When an issue of law is presented by defendant without demanding formal arraignment, this amounts to waiver of arraignment, as to either or both issues, as this is a plea to the merits of the indictment.

Error from Superior Court, Bartow County; A. W. Fite, Judge.

Tip Kincade was convicted of unlawfully selling intoxicating liquors, and brings error. Affirmed.

Russell C.J., dissenting.

Neel & Neel, of Cartersville, for plaintiff in error.

Sam P Maddox, Sol. Gen., of Dalton, for the State.

ROAN J.

Tip Kincade was charged by the grand jury of Bartow county with a misdemeanor, in that, on December 21, 1913, in that county he did unlawfully "sell and barter, for a valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors, and other drinks if frunk to excess will produce intoxication," etc. The bill of indictment was headed, "State of Georgia, Bartow Superior Court, October Term, 1913." Upon the back of the indictment was the following: "Charge, Misdemeanor. No. 7, January Term, 1914. Bartow Superior Court. State v. Tip Kincade. True bill. Thos. Lumpkin, Foreman." The case came on for trial at the regular January term, 1914, of Bartow superior court, on January 21st. When the case was called for trial, the defendant, through his counsel, filed a written demurrer to the indictment, the demurrer was overruled, and to the overruling of the demurrer he excepted pendente lite. After overruling the demurrer, the court immediately ordered that the trial proceed, whereupon the Solicitor General presented to the defendant's counsel a written waiver of formal arraignment and a plea of not guilty, which the defendant, by his counsel, refused to sign, and announced that he refused to plead to the indictment and that he insisted upon his legal rights. Thereupon the court directed the Solicitor General to enter a plea of not guilty for the defendant, and the Solicitor General then made and signed an entry upon the bill of indictment, as follows: "The defendant Tip Kincade stood mute and refused to plead, and the court directed that the plea of not guilty be entered. [ Signed] Sam P. Maddox, Solicitor General." Promptly upon the making of this entry, the court ordered that a jury be stricken, which was done, and the jury was duly sworn; whereupon the state, without objection, introduced the following evidence: The minutes of Bartow superior court, showing that the indictment under which the defendant was then being tried was returned "true" by the grand jury of that court at the January term, 1914; and also the minutes of the court showing that Thomas Lumpkin was foreman of the grand jury at the January term, 1914. J. W. Stanford, a witness for the state, testified, on direct examination, as follows: "I bought a pint of whisky from Tip Kincade and paid him a dollar for it, in this county, some time during last year." There was no cross-examination of this witness, and defendant introduced no evidence and made no statement. Without argument of counsel, the court charged the jury, who returned a verdict finding the accused guilty. Upon the rendition of this verdict the court sentenced the prisoner. To all of the foregoing proceedings, including the putting of the defendant on trial before the jury and his trial under the indictment, the verdict of the jury, and the sentence of the court thereon, the defendant excepted in his bill of exceptions, insisting that there was never any arraignment, or reading of the bill of indictment, or any waiver of these formalities by him before he was called on to plead to the indictment; that the entry by the Solicitor General of the plea of not guilty for him, for the reasons above stated, was illegal; and that therefore no issue was formed upon said bill of indictment upon which to try him, and the whole of said trial, including the verdict and sentence, was illegal and void.

The demurrer to the indictment was based on four grounds. The first ground is that the indictment charges the defendant with having committed the crime on December 1, 1913, but on its face appears to have been presented at the October term 1913, and...