11 S.E.2d 42 | Ga. Ct. App. | 1940
1. "One who has filed a plea of guilty in a criminal case can not move for a new trial. Where one accused of crime voluntarily pleads guilty to the charge, a new trial can not be granted; for there was no verdict. A plea of guilty may, as a matter of right, be withdrawn before sentence; and after sentence the judge may permit it to be withdrawn upon meritorious grounds, addressed to his discretion; but neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty." Bearden v. State,
2. Where the defendant, with full knowledge of the charge against him and of his rights and of the consequences of a plea of guilty, entered such a plea understandingly and without fear or persuasion, and his counsel had not requested or obtained a leave of absence from the court, and at the time the defendant was sentenced he did not suggest to the court that he wished his counsel present, even though his counsel might have previously requested the solicitor-general to notify him thereof, and although the solicitor-general, who had not agreed to the request, overlooked it and failed to notify defendant's counsel, the court did not violate any of the defendant's statutory rights under the Code, § 27-1404, in proceeding to sentence him under his plea of guilty, in the absence of his counsel. The constitutional questions in the case were evidently not properly raised, since the Supreme Court transferred the case to this court.
"The specific office of a motion for a new trial is to procure the setting aside of the verdict which has been returned against the complaining party." Register
v. State,
"A judicial confession is a plea of guilty made by an accused in a fit state of mind to plead before a court competent to try the pending charge in which the proceedings have been regularly instituted, and which, upon entry of that plea, is competent to enter judgment and affix the penalty. Such a confession is conclusive as to guilt in fact of the offense charged." 2 Wharton's Crim. Ev. (11th ed.) 965, § 586. "Like any other confession, it must be shown to *280
have been voluntary, that is, that it was uninfluenced by any improper inducement, and that it was not the result of a misunderstanding. The conclusiveness of the plea is based upon its free and voluntary character, arising from a consciousness of guilt, but where it is entered from any other motive courts should allow it to be withdrawn on request, and a plea of not guilty substituted in its place. Thus, where the accused enters a plea to the wrong indictment; or is a foreigner, unacquainted with judicial proceedings; or where the accused believed, from a remark of the judge, that he would receive the minimum sentence; or where there is a doubt as to the sanity of the accused; or where he pleads under fear and intimidation, a refusal to allow the plea to be withdrawn is a reversible error." Id. 974, § 587. See Davis v. State,
In the instant case the defendant does not contend that before the entering of the plea of guilty any one misled him or induced him to plead guilty, or made any promise in regard thereto. Where, after the plea of guilty was entered, the defendant's counsel merely requested the solicitor-general to notify him when the judge would sentence the defendant, to which request it does not affirmatively appear that the solicitor-general acceded (and certainly it is not shown that he promised and agreed so to do), the overlooking by the solicitor-general of such a request and his failure to comply with it, and the further facts that counsel had not sought or obtained any leave of absence from the court, and that the defendant, although present when he was sentenced, did not even suggest to the court that he wished his counsel also present, would not be a ground which would require the judge to vacate the sentence because of the absence of the defendant's counsel at the time the court passed sentence upon him. Crawford v.Crawford,
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.