Miller v. State
| Decision Date | 18 November 1970 |
| Docket Number | No. 45754,No. 3,45754,3 |
| Parties | Larry MILLER v. The STATE |
| Court | Georgia Court of Appeals |
J. Donald Bennett, Rossville, for appellant.
Earl B. Self, Dist. Atty., Summerville, for appellee.
Syllabus Opinion by the Court
The accused was indicted, tried and convicted of burglary. He was sentenced to serve a term of seven years in confinement, and the appeal is from the judgment and sentence and from the overruling of his motion for new trial. He enumerates as error: (1) the denial of counsel; (2) the conducting of the trial during his absence; and (3) the evidence was insufficiency of the evidence to support the verdict. Held:
1. Where the accused was present and participated in the selection of a jury, but thereafter voluntarily absented himself from the proceedings, being under no restraint and free to go and come at will under a bond, he waived any right to be present at all stages of his trial. Barton v. State, 67 Ga. 653; Robson v. State, 83 Ga. 166(9), 9 S.E. 610; Wilkerson v. State, 14 Ga.App. 475, 81 S.E. 395; Fraser v. State, 21 Ga.App. 154, 94 S.E. 79; Vicks v. State, 42 Ga.App. 451, 453, 156 S.E. 729; Hill v. State, 118 Ga. 21, 44 S.E. 820; Cawthon v. State, 119 Ga. 395(9), 46 S.E. 897. It is noted that no objection was made by his appointed counsel to proceeding with the trial without the accused being present. We find no merit in this complaint.
2. The record does not disclose defendant made any objection to counsel who was appointed for him, nor is it shown how and when the defendant was denied counsel. This is a court for the correction of errors of law only (Constitution of 1945; Code Ann. § 2-3708), and we cannot consider matters dehors the record. Counsel for appellant attaches to his brief several affidavits in an attempt to prove there was a denial of counsel. But we cannot consider this as evidence. Robinson v. Woodward, 134 Ga. 777, 68 S.E. 553; Blackman v. Garrett, 135 Ga. 226, 69 S.E. 110; Silvey & Co. v. Brown, 137 Ga. 104, 72 S.E. 907; Secured Ins. Co. v. Whitley Construction Co., 111 Ga.App. 430, 142 S.E.2d 82. There is no merit in this complaint.
3. There was ample evidence, both direct and circumstantial, that the burglary occurred about 1 a.m.; that accused and his alleged accomplice were seen and arrested in the immediate vicinity of the building burglarized; a tire tool was found near the accused; it was not the property of the service station; a window had been broken and...
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Cesari v. State
...waived right to be present), Estep v. State, 238 Ga.App. 170, 170–172(1), 518 S.E.2d 176 (1999) (same), and Miller v. State, 122 Ga.App. 869, 869(1), 179 S.E.2d 265 (1970) (same). Also see Stell v. State, 210 Ga.App. 662, 663(4), 436 S.E.2d 806 (1993) (trial court did not err in denying mot......
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Tinker v. State, A95A1789
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Fictum v. State, 76694
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