Bryans v. State

| Ga. | Jun 15, 1866

Harris, J.

Until arraignment and plea, there is no issue between the State and prisoner. See 4525 seo. of Code.

It is conceded on all hands, that there had been in this case no arraignment of the prisoner, nor waiver of it. There could, consequently, be no plea to the indictment. The empanneling of a jury then was, then, merely an irregularity.

The omission to arraign, in Georgia, furnishes no ground in arrest oí judgment: the prisoner cannot, under our criminal system, get any substantial advantage by it. The provisions of the Code and its spirit, in consonance with that of the age, looks only to giving the accused a fair and impartial trial upon the merits of the case, and gives no countenance to the escape of persons charged with crime, upon mere technicalities. The day has passed, and never to return, when ■ the course of justice could be arrested by trifles and objections having no substantive weight.

"Whilst we give such expression to our opinions, we will, not, by construction, deprive a person accused of any safeguard to which he is clearly entitled by law; but we cannot llow him to sit by silently, wi^h eminent counsel by his side, all cognizant of a casual omission of what is considered mostly a form, and which is uniformly waived when requested, and to snatch, in consequence of it, as it were by indirection, a verdict of not guilty.

Would not such a verdict, thus had, be on its face a living lie ? Would it not be also a libel on the honesty of the jury finding it — the intelligence of the Court sanctioning it ? Persons accused should be tried. Let the State offer its evidence of guilt, and if insufficient to establish it beyond a reasonable doubt, then let the jury find a verdict of not guilty.

We well know that, by the Code, a nolle prosequi cannot, without the consent of the accused, be entered on an indictment after a case has been submitted to a jury; but we decide that there can be no legal submission to a jury until after arraignment and plea, or issue made. Hence, we can perceive no error in the Circuit Judge in allowing the Solicitor General to enter a nolle prosequi under the circumstances of this case. Had there have been an issue, as the law requires in all criminal cases, and one juror only empanneled and sworn, the case would then have been submitted, and no nolle prosequi could be then entered as of right, but only with the consent of the accused. Then the jeapordy of the accused begins, and not till then. Whenever a juror has been selected and sworn, the cause must proceed to verdict, unless one of those contingencies should occur provided for by statute.

I have announced, I believe, the view ot the entire Court. I venture to suggest, that I am unable to perceive any reason, of weight, why the Circuit Judge could not, with propriety and according to the analogies of law, have held that the accused was entirely estopped from objecting that there was no arraignment and plea or issue in the case; as he had proceeded to select his jury, and allowed them to be sworn, “to try the issue formed on this bill of indictment between the State of Georgia and himself, charged, &c.” His silence and conduct, in the presence of the Court, entirely cognizant of the omission, and not objecting to proceeding, authorized the Court to presume an issue; he should not, after what had transpired, be permitted to deny that there was no issue; and an order reciting the facts should have been entered on the minutes, and the trial proceeded with without other delay.

Judgment affirmed.