Smith v. State

• Decision Date: 06 February 1903
• Parties: SMITH. v. STATE.
• Court: Georgia Supreme Court

43 S.E. 440

117 Ga. 16

SMITH.

v.STATE.

Supreme Court of Georgia.

Feb. 6, 1903.

WRIT OF ERROR—PAUPER AFFIDAVIT—COSTS —CRIMINAL LAW—VERDICT.

1. In order to relieve the plaintiff in error from the payment of costs in this court, it is necessary that a proper pauper affidavit shall be filed with the clerk of the trial court before the bill of exceptions and transcript of the record are transmitted to this court. No excuse will avail in case of failure to file the pauper affidavit before this time, and under no circumstances is this court authorized to receive the affidavit upon the call of the case here.

2. A verdict in these words, "We, the jury, find the defendant guilty of misdemeanor, " upon a presentment for burglary, the allegations of which are sufficient to authorize a conviction for either larceny from the house or simple larceny, was so vague and uncertain that no legal judgment could be rendered thereon, and it was erroneous to overrule a motion in arrest of judgment.

(Syllabus by the Court.)

Error from superior court, Cobb county; Geo. F. Gober, Judge.

R. M. Smith was convicted of a misdemeanor, and brings error. Reversed.

Chas. H. Griffin and Wm. Attaway, for plaintiff in error.

B. F. Simpson, Sol. Gen., for the State.

COBB, J. The accused was placed on trial charged with the offense of burglary. The presentment charged that he broke and entered a storehouse "with the iutent to commit a larceny therein, the said intent being then and there one dollar in money, of the value of one dollar, forty cents in money, of the value of forty cents, and one cent in money, of the value of one cent, the personal goods and private property of one John Butler, wrongfully, fraudulently, and privately to take and carry away with the intent to steal the same, and did then and there wrongfully, fraudulently, and privately take and carry away from said storehouse, with intent to steal the same, contrary to the laws, " etc. The jury returned the following verdict: "We, the jury, find the defendant guilty of misdemeanor." The accused made a motion in arrest of judgment upon several grounds, among them being that the verdict was so uncertain that no legal sentence could be pronounced thereon, and that the same was a nullity. This motion was overruled, and the accused excepted.

1. When this case was reached in its order, attention was called to the fact that the costs had not been paid, and that no pauper affidavit appeared in the record. Counsel for plaintiff in error then moved to be allowed to file a pauper affidavit, accompanying this motion with evidence showing that, after the motion in arrest of judgment had been over-ruled, and before the bill of exceptions was filed, counsel bad prepared a pauper affidavit for their client to sign; that it had been sent to a convict camp, at which the accused was then serving the sentence imposed in this case; that the affidavit was not returned to them until after the bill of exceptions and record had been transmitted to this court; and that the failure to return it sooner was not due to the fault of the accused or his counsel. The constitution declares that "plaintiffs ill error shall not be required to pay costs in [the supreme court] when the usual pauper oath is filed in the court below." Civ. Code, § 5881. Rule 14 of this court (20 S. E. viii) provides that a certified copy of the pauper affidavit must be "transmitted to this court and as a part of the transcript of the record, or, if no transcript is required, with the bill of exceptions." Civ. Code, § 5613. See, in this connection, Thorpe v. State, 92 Ga. 470, 17 S. E. 693 (2); Jenkins v. State, 92 Ga. 470, 17 S. E. 693; ...