Smith v. The State Of Ga.
| Decision Date | 31 January 1878 |
| Citation | 60 Ga. 430 |
| Parties | Smith. v. The State of Georgia. |
| Court | Georgia Supreme Court |
[This case was argued at the last term and decision reserved.]
Criminal law. Indictment. Verdict. Sentence. Practice in the Superior Court. Judgments. Before Judge Tompkins. Chatham Superior Court. February Term, 1877.
Smith and Davis were charged with the offense of larceny from the house of goods over the value of $50.00, for that *they, in the county of Chatham and state of Georgia, on December 20, 1876, with force and arms, from the dwelling-house of one Eldred Geffcken, one pocket-book, of the value of $1.00, and * * * all the property of one Georgia C. Geffcken, therein being found, wrongfully, feloniously, and fraudulently, did take and carry away with intent to steal the same, etc. The jury acquitted Davis, but found Smith guilty. The court sentenced him to the penitentiary for eight years. It did not appear in the record of the case that either the prisoner or his counsel was present when judgment was pronounced. Smith moved to set aside the sentence because it was unsigned, not sufficiently full, the punishment was excessive, and it was unauthorized by the verdict. Also, because the pleadings and record were so fatally defective that no valid judgment could be based thereon.
The judge certifies that the sentence was pronounced and entered on the minutes on January 26, 1877, and the minutes duly signed.
The motion was overruled, and defendant excepted.
A. P. & S. B. Adams; P. W. Meldrim, for plaintiff in error.
A. B. Smith, solicitor general, for the state.
1. The indictment omitted the word "privately, " in alleging the act of stealing. Objection to it on this ground came too late, after verdict. Code, § 4629.
2. The value of the stolen goods being alleged in the indictment, and the allegation being material in grading the punishment, a general verdict of guilty was a finding that the allegation was true. If the value proved had been under fifty dollars, the jury would have returned the fact specially (12 Ga, 298), or rendered a verdict of not guilty.
3. In Georgia practice, the presence of the prisoner and hiscounsel, in all stages of the proceedings, is assumed, unless *the contrary appears. The court will do nothing in their absence that ought to be done in their presence, and will, from time to time, see for itself that they are present. But it is not usual to make any special entry in the minutes, or elsewhere, as a memorial of such presence. The reason is, doubtless, that whenever any act or proceeding is recorded as taking place in a criminal case, the presence of the prisoner and his counsel, though not noted expressly, is included in each entry by a kind of implication; or so it is deemed, so long as the fact of presence is not negatived by the record, or by some appropriate evidence aliunde. Arraignment is required to be recorded (Code, §§ 4636, 4638, 4640), but the ordinary form of entering it affords no evidence of the prisoner\'s presence, other than that which is implied in the fact of the arraignment. To arraign a prisoner in his absence is legally impossible. Therefore, if he was arraigned he must have been present. Sentence, also, is recorded, and the record bears the same kind of testimony to the prisoner\'s presence, at the time when it was orally pronounced, as on the occasion of arraignment. To sentence a prisoner (in felony, at least,) during his absence, is legally impossible; from which it follows, that if he was sentenced he must have been present. The presence of his counsel, unless dispensed with by consent, is equally within the implication, inasmuch as (except when so dispensed with) their presence is no less essential than his. 51 Ga, 567. As may be seen by the authorities cited by counsel infra, this Georgia practice would not suffice in England, nor generally in America. But in all judicial proceedings, this state has long used a concise method of...
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