Reddick v. State

149 Ga. 822 | Ga. | 1920

Lead Opinion

Per Curiam.

After the selection of a jury in the trial of a criminal case, in which the accused has participated (assuming from the question under review that the defendant in the instant case did partieipate in the selection of a jury), and after the introduction of evidence upon the merits of the ease has commenced, the defendant will be deemed to have waived formal arraignment, and' it' is then too late for him to demur; and the court did not err in refusing to allow the defendant to demur, nor in overruling the motion to quash.

---

Dissenting Opinion

Hill and Gilbert, JJ.,

dissenting. Where a criminal case proceeds to trial without formal arraignment, or waiver of arraignment, or plea, it is not too late, until a verdict has been returned, to demur to the indictment. Bryans v. State, 34 Ga. 323. But where the accused, without arraignment, waiver thereof, or plea, allows the trial to proceed to verdict, takes part in the introduction of evidence, and sits by during the charge qf the court, it is too late to demur. Lampkin v. State, 87 Ga. 516, 524 (13 S. E. 523); Hudson v. State, 117 Ga. 704 (45 S E. 66).

“The main bill of exceptions contains the following recitals: ‘Upon the call of said ea'se there was no formal arraignment nor plea entered, and, after the State had examined its first witness in chief and turned the same over to counsel for'the defendant for cross-examination, defendant’s counsel for the first time had an opportunity to see the indictment and discovered a fatal defect in the indictment, to wit, [the indictment] charged the offense as having been committed on the 6’th day of July, nineteen hundred and — , and offered to demur to the indictment, and the court overruled the same; and the defendant moved to quash the indictment on the grounds that said indictment charged the defendant with committing the offense in the year nineteen hundred, and there were no allegations in the indictment or exceptions stated therein to take it out of the bar, therefore the 'offense was barred by the statute of limitations; to which offer to be allowed to demur and motion to quash the court overruled on the ground that defendant had waived the defect by going to trial. Whereupon the defendant stated that he had not waived arraignment and had not been called upon to do so, and declined to waive arraignment, and demanded that he be arraigned, which the court overruled on the ground that he waived being formally arraigned by engaging in the trial; which rulings of the court the defendant excepted pendente lite/ The main bill of exceptions contains a proper assignment of error upon the exceptions pendente lite.

"Did the court err in refusing to allow the defendant to demur to the indictment, or in refusing to quash the indictment, or in overruling the motion in arrest of judgment ? See Bryans v. State, 34 Ga. 323/-’

Davidson & Callaway, for plaintiff in error. Doyle Campbell, solicitor-general, contra.