Smith v. State

Jan 15, 1878
Reporters:
Before:
Bleckley
Bleckley, Judge.

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 his counsel, in all stages of the proceedings, is assumed, un*432less the contrary appears. The court will do nothing in their absence that ought to be done in théir 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 presénce. 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 aliimde. 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 isimjffied 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 recording- — sometimes, it may be, altogether too concise. Brevity, within certain limits, is a great merit; but extreme brevity, like most other extremes, is an imperfection, and the scrappy recording which is in vogue with us is attended, not infrequently, with grave inconvenience. Erom the language used in 11 Ga., 253, in the head-note, or in thatyised in the opinion, it need not be *433necessarily inferred that the prisoner’s presence or that of his counsel was matter of record, in that case, on’ the minutes of the superior court, or elsewhere in what is termed the record proper. Most probably it appeared to the supreme court from the bill of exceptions, and not otherwise. In a large and loose sense, the transcript and the bill of exceptions taken together are often called “ the record,” after a case reaches the supreme court. The expression “ conceded on the record,” as used in the opinion referred to,would scarcely be apropriate if the purpose had been to rest the argument on the contents of a direct entry appearing in the record proper. As the bill of exceptions was prepared and signed by counsel for the plaintiff in error, the statement therein of a fact favorable to the state (the defendant in error), might well be called a concession. The authority most in point on the question .before us is 53 Ga., 137. It rules that absence at the rendition of the verdict is a fact extrinsic of the record, and may be proved on a motion to set aside the verdict; and that the judgment will not be arrested because presence does not affirmatively appear, in express terms, on the face of the record. The ground of the decision is, established practice believed to be uniform:

4. Failure to name the offense in the body of the sentence, and to sign the sentence and date it, is not fatal. The case was fully stated at the top, or beginning of the sentence, and both the date and signature were supplied by entering the sentence on the minutes as of a particular day, and the regular signing of the minutes of that day by the judge. As the minutes now stand, they show that the judgment, or sentence, was pronounced by the court, when it was pronounced, against whom,-and for what offense. The record is complete, and sufficiently explicit.

Cited by counsel: (indictment) R. M. Charl., 1.51; 50 Ga., 258 to 261; Code, §§4413, 4414, 4628; 1 Bish. Cr. Pro., §360 et seq.; (verdict, value), 2-Arch., Cr. Plead., 372; 1 Greene, 316; 17 Iowa, 329; 46 Ib., 531; 2 Ill., 392; 32 *434N. H., 106 ; (record), 54 Ga., 250; 11 Ib., 253, 258 ; 51 Ib., 569 ; 6 Am. R., 691; 1 Bish. Cr. Pro., §§925, 931.

Judgment affirmed.