Wells v. Terrell

• Decision Date: 09 December 1904
• Citation: 49 S.E. 319,121 Ga. 368
• Parties: WELLS et al. v. TERRELL, Governor.
• Court: Georgia Supreme Court

49 S.E. 319

121 Ga. 368

WELLS et al. v. TERRELL, Governor.

Supreme Court of Georgia

December 9, 1904

Syllabus by the Court.

1. The waiver of arraignment must be the equivalent of the thing waived, and be made under such circumstances as will serve the purpose of the law in requiring the formality.

2. As one of the purposes of arraignment is to identify the person on trial and raise an issue by plea, it is legally impossible to arraign the defendant, accept his waiver, or receive a plea in his absence.

3. It is universally held that a defendant in a felony case cannot be arraigned or pleaded in his absence. There is nothing in the Penal Code to suggest that there is any difference in this respect as to trials for misdemeanors, where the punishment may be by fine or imprisonment.

4. Where, therefore, one indicted for simple larceny was absent when the case was called, and his counsel offered to enter for him a plea of guilty, this afforded no defense in a proceeding to forfeit bail.

5. If the greater offense named in the bond includes the smaller offense named in the indictment, or if the smaller offense named in the bond forms an element of the greater offense named in the indictment, or if the two offenses contain a common element, the security will in either case be required to produce the body of his principal to answer to the indictment.

6. The prisoner gave bond to answer for the offense of larceny from the person. This required the bail to produce the body of the defendant to answer the indictment for simple larceny.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Proceedings by J. M. Terrell, Governor, against W. D. Wells and another to forfeit a bail bond. Judgment for plaintiff, and defendants bring error. Affirmed.

John R Cooper, for plaintiffs in error, cites State v. Lockhart 24 Ga. 420; State v. Woodley, 25 Ga. 235; McDaniel v Campbell, 78 Ga. 188; Candler v. Kirksey, 113 Ga. 309, 38 S.E. 825, 84 Am.St.Rep. 247; Williams v. Candler, 119 Ga. 179, 45 S.E.

989; Crutchfield v. State, 24 Ga. 335; Adams v. Governor, 22 Ga. 417; Hill v. State, 118 Ga. 21, 44 S.E. 820; Robson v. State, 83 Ga. 166, 9 S.E. 610; Nolan v. State, 53 Ga. 137; Franks v. State (Ga.) 48 S.E. 148; People v. Gaunt, 23 Cal. 158; McIntosh v. Lee, 57 Iowa 357, 10 N.W. 895; State v. Conneham (Iowa) 10 N.W. 677; Edmonds v. Torrence, 48 Ala. 41; People v. Hunter, 10 Cal. 502; Clark's Cr. Proc. pp. 98, 99.

Wm. Bennson, Sol. Gen., and A. L. Miller, for defendant in error, cite 1 Bishop's Cr. Proc. § § 265, 268, 2645, 275; U.S. v. Mayo, 1 Curt. 433, 434, Fed. Cas. No. 15,754; Foote v. Gordon, 87 Ga. 277, 13 S.E. 512; Gardner v. State, 105 Ga. 662, 31 S.E. 577; Strickland v. State, 115 Ga. 222, 41 S.E. 713; Blandford v. State, 115 Ga. 824, 42 S.E. 407; Lavender v. State, 107 Ga. 707, 33 S.E. 420.

LAMAR, J. (after stating the foregoing facts).

The defendant was charged with a misdemeanor punishable by fine or imprisonment. On the call of the case he was absent, but his authorized counsel offered to enter a plea of guilty for him. This the court refused to allow, holding that it had no jurisdiction to enter upon the trial or to receive the plea in the prisoner's absence. The rule in the several states on the subject is not uniform. In some it is in express terms provided by statute that a trial for a misdemeanor may be had in the defendant's absence. Without statute, some courts hold that, while the defendant is never entitled to this privilege as matter of right, yet, for sickness, or other good cause shown, the court may, in its discretion, permit one charged with a misdemeanor to be tried therefor in his absence. Others limit the right to be thus tried to those cases in which the punishment can only be by fine, and in a few cases it seems to have been held that the prisoner must be present at the time the trial on any indictment begins. Slocovitch v. State, 46 Ala. 227; Ex parte Tracy, 25 Vt. 93; U.S. v. Mayo, 1 Curt. 433, Fed. Cas. No. 15,754, 68 Am.Dec. 220; 1 Bish. Cr. Proc. (3d Ed.) § 268; Clark's Cr. Proc. 427. The English decisions are not clear on the point here involved, inasmuch as it does not appear what punishment could have been inflicted in the particular cases reported. Besides, the rulings may have been affected by the fact that at common law an arraignment does not seem to have been required in prosecutions for misdemeanor. Lynch v. State (Tenn.) 41 S.W. 348; Griffin v. Com. (Ky.) 66 S.W. 740; Salfner v. State (Md.) 35 A. 885; Johnson v. People, 22 Ill. 317. The question has not been passed on by this court. In Barton v. State, 67 Ga. 653, 44 Am.Rep. 743, Robson v. State, 83 Ga. 167, 9 S.E. 610, and Hill v. State, 118 Ga. 24, 44 S.E. 820, it was held that the defendant could not, by an escape or voluntary absence on bond, nullify a trial otherwise legal, and by his own act of nonattendance prevent the rendition of a verdict. But in each of those cases the defendant was present at the time the trial began. There being, therefore, no direct ruling on the subject in this state, the question must be decided on general principles, as affected by the Penal Code. It is silent on the direct point here involved, but its provisions as to the formalities attending a trial, and particularly those on the subject of arraignment (Pen. Code 1895, § 946), are full of implications that the defendant must be present before the court may enter upon the trial, or accept a plea of guilty, which makes a trial unnecessary. Except in proceedings against corporations (Pen. Code 1895, § 938), and possibly in the trial of petty offenses in some municipal courts, a defendant charged with crime is not served with process. He may be arrested on a bench warrant, which in some respects is equivalent to process (Brady v. Davis, 9 Ga. 73); but jurisdiction of his person is not acquired by the arrest or confinement in prison, but by his presence at the time issue is joined on the indictment. To arraign a prisoner in his absence is legally impossible. Smith v. State, 60 Ga. 432. It is conceded that a trial of a felony case could not proceed without the defendant having been arraigned, or made a valid waiver thereof. But there is nothing in the Code which suggests that there is in this respect any difference between trials for felony and trials for misdemeanor. On the contrary, it seems to contemplate an arraignment in all cases. Pen. Code 1895,§ 947. This formality is intended, among other things, to cut off all question as to misnomer, and to identify the person on trial as being the one named in the indictment. Regularly, this procedure requires the defendant to stand up, face the court and jury, and listen to the reading of the indictment. In answer to the clerk's inquiry whether he is guilty or not guilty of the offense charged, he orally makes his plea. This is not a mere idle ceremony, but furnishes a safe and conclusive means of identification. It permits the court, on the rendition of a verdict of guilty, to impose sentence and put the identified defendant into execution. To secure this important end, it is therefore the state's right to have him present when the trial begins. Besides, this requirement prevents the prosecution from degenerating into the appearance of a mock trial before a moot court, with no one in apparent jeopardy. And while the arraignment may be expressly or tacitly waived (Hudson v. State, 117 Ga. 704, 45 S.E. 66), yet the waiver must be an equivalent of...