Smith v. The State Of Ga.

• Decision Date: 30 September 1879
• Citation: 64 Ga. 439
• Parties: Smith. v. The State of Georgia.
• Court: Georgia Supreme Court

64 Ga. 439

Smith. v. The State of Georgia.

Supreme Court of the State of Georgia

(September Term, 1879.)

1. New Trial—Motion—Time for. —During the term of the court wherein he was found guilty, the defendant made a motion for a new trial, with brief of evidence agreed upon by the counsel, which motion the court refused to entertain in the following words: "I refuse to approve the above brief of evidence or entertain the motion for a new trial, because at the time defendant was found guilty his counsel asked for a suspension of the sentence to enable him to make a motion for a new trial, and when the time given for that purpose had elapsed, the counsel asking the suspension and who defended the defendant on the trial, abandoned his motion, to-wit: F. W. Robert, Esq., of Robert & Mallard, and asked the leniency of the court in passing sentence, and the defendant himself produced a certificate in writing of the jury who found the verdict that they intended to recommend him to the mercy of the court, and himself asked the leniency of the court, and as matters thus stood submitted to his sentence; and now, after all that has occurred, and I shaped my sentence accordingly, supposing that to be the last of the case, defendant has employed other counsel to move for a new trial, which is such trifling with the court by himas I will not tolerate, unless ordered by the supreme court. As I regard the defendant a bad man, and the evidence showed he had been and was then engaged in a serious difference with many citizens of Stone Mountain, Georgia, I should have put upon him a severe penalty but for the promise of his counsel that he would discontinue that quarrel: "

Held, 1. That the defendant is entitled of right to make a motion for a new trial at any time during the term at which he is tried, on complying with the provisions of law in regard thereto.

2. Same—Same—Forfeiture of Right.—That this right is not forfeited by the fact that sentence has been passed upon him.

3. Same—Same—Right to Employ Other Counsel.—That if dissatisfied for any reason with the counsel who defended him before the jury or before the court at the time sentence was rendered against him, he may employ other counsel to move for a new trial.

4. Same—Same—Modification of Sentence—Effect on Right to Move for New Trial.—That the sentence of the court ought not to be modified by any arrangement between defendant or his counsel and the court, looking to his abandonment of the right to move for a...