Sellers v. State, 33306

• Decision Date: 05 December 1950
• Docket Number: No. 2,No. 33306,33306,2
• Citation: 62 S.E.2d 395,82 Ga.App. 761
• Parties: SELLERS et al. v. STATE
• Court: Georgia Court of Appeals

Page 395

62 S.E.2d 395

82 Ga.App. 761

SELLERS et al. v. STATE.

No. 33306.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1950.

Syllabus by the Court.

Where a defendant goes on trial without formal arraignment and plea and where he or his counsel fails to file a written waiver of arraignment and enter a written plea, these defects will not vitiate the judgment where the point was not made until after the verdict was rendered and the judgment based thereon was entered.

Raymond Sellers and Henry Sellers were tried and convicted in the Superior Court of Washington County for the offense of attempted burglary. When the case was previosly before this court, the judgment of the trial court overruling the motion for a new trial was affirmed. See Sellers v. State, 81 Ga.App. 212, 58 S.E.2d 262. After the judgment of affirmance, the defendants filed a motion to set aside the judgment on the ground that the record showed on its face that the defendants were not formally arraigned, nor arraigned in any manner, and did not waive arraignment; that the defects appear on the face of the record and are not amendable, and that in consequence thereof the defendants have been denied due process of law as provided by the constitution. The bill of exceptions in this case has attached to it as exhibits the petition to set aside, the indictment, including all entries thereon, the verdict and judgment, and the response of the solicitor general, which response set out a copy of the bill of exceptions of the defendant in his former appeal to this court from the overruling of his motion for a new trial, which first bill of exceptions contained the following statement: 'Be it remembered that at said term of court, and on Sept. 7, 1949, with Honorable Robert Henry Humphrey, judge thereof, then and there presiding, said cause, as aforesaid, came on for trial; defendants waived being formally arraigned and pleaded not guilty to charge in indictment.' The bill of exceptions in this case recites that all these papers were introduced in evidence on the hearing, at the conclusion of which the trial court overruled the motion to set aside the judgment. The only evidence as to arraignment was the following notation on the back of the accusation:

'The defendant, Henry Sellers, Raymond Sellers, Pete Sellers, waives copy of indictments and list of witnesses, also waives being formally arraigned and pleads not guilty.

'W. H. Lanier, Solicitor General

'_____

Defendant's Attorney, Sept. 7, 1949'

The bill of exceptions in this case was directed to the Supreme Court, and was by it transferred to this court, 207 Ga. 249, 61 S.E.2d 145, it being there held that the case involved a mere application of unquestioned and unambiguous provisions of the Constitution to a given state of facts, for which reason this court, and not the Supreme Court, had jurisdiction of the subject matter.

Newell J. Smith, Louisville, J. D. Godfrey, Casey Thigpen, Sandersville, for plaintiffs in error.

W. H. Lanier, Sol. Gen., Metter, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

It is the contention of the State that the defendant, having in his first bill of exceptions recited that he waived formal arraignment and pleaded not guilty, would now be estopped from complaining that the signature of his attorney did not appear on the waiver and plea, and from contending that he did not in fact waive arraignment. A motion to set aside a...