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State, 122 Ga. 568, 50 S. E. 361; Smith It gave to the United States the right to v. State, 81 Ga. 480, 8 S. E. 187.

supervise the performance of this duty, and Mr. Warren Grice, Attorney General, transferred from the state to the Federal also for the State:

Supreme Court the ultimate decision on the The voluntary absence of the accused at question of the presence of due process in the time the verdict is received will not all proceedings affecting life, liberty, and vitiate the verdict.

property. But under the amendment the Cawthon v. State, 119 Ga. 395, 46 S. E. authority of the Federal court is merely to 897; Barton v. State, 67 Ga. 653, 44 Am. determine whether the state, by some official Rep. 743; Robson v. State, 83 Ga. 167, 9 action, has provided due process or has S. E. 610.

failed in that duty; and if a denial of due Counsel for accused had the right to make process appears, it can only pronounce the an express waiver of his presence.

proceedings void. The power of the FedTiller v. State, 96 Ga. 430, 23 S. E. 825; eral government ordinarily ends with that Hill v. State, 118 Ga. 21, 44 S. E. 820; / act. Thus the primary duty of providing Cawthon v. State, 119 Ga. 395, 46 S. E. 897. for the protection of life, liberty, and prop

Waiver by the attorney is binding on the erty by due process of law rests still with client.

the states, and the 14th Amendment operMitchum v. State, 11 Ga. 630; Sarah v. ates merely as a guaranty addition to the State, 28 Ga. 576; 4 Cyc. 939, 940.

state Constitutions against encroachments

on the part of the state upon fundamental Hill, J., delivered the opinion of the rights, which their governments were crecourt:

ated to secure. It did not radically change 1. Did the absence of the defendant, un- the whole theory of the relations of the der the foregoing statement of facts, at the state and Federal governments to each other time that the verdict finding him guilty of and of both governments to the people.” murder was received by the court and the See United States v. Cruikshank, 92 U. S. jury trying him was discharged, render the 542, 23 L. ed. 588; Re Kemmler, 136 verdict void and of no legal effect? It is U. S. 436-438, 34 L. ed. 519, 521, 10 Sup. insisted by the defendant that the reception Ct. Rep. 930. “The Federal Supreme Court of the verdict in his involuntary absence, has again and again declared that, when while he was confined in jail, was in viola- the highest court of a state has acted tion of the due process clauses of the state within its jurisdiction and in accordance and Federal Constitutions, and that it de with its construction of the state Constinied him the equal protection of the laws. tution and lane, very exceptional circum“Due process of law, as the meaning of the stances will be necessary in order that the words has been developed in American de- Federal Supreme Court may feel justified cisions, implies the administration of equal in saying that there has been a failure of laws according to established rules, not due process of law. 'We might ourselves violative of the fundamental principles of have pursued a different course, but that is private right, by a competent tribunal hav- not the test. The plaintiff in error must ing jurisdiction of the case and proceeding have been deprived of one of those fundaupon notice and hearing. The phrase is and mental rights, the observance of which is has long been exactly equivalent to and con- indispensable to the liberty of the citizen, vertible with the older expression “the law to justify our interference. For especially of the land.' The basis of due process, or- in cases involving procedure is it true that derly proceedings and an opportunity to de- 'due process of law means law in its reg. fend, must be inherent in every body of law ular

of administration through or custom as soon as it advances beyond the courts of justice.?” McGehee, Due Process stage of uncontrolled vengeance.” McGehee, of Law, 167, citing Allen v. Georgia, 166 Due Process of Law, 1 citing Chicago, B. & U. S. 138, 41 L. ed. 949, 17 Sup. Ct. Rep. Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 525, which case is cited and approved in 979, 17 Sup. Ct. Rep. 581.

Wilson v. North Carolina, 169 U. S. 586, On page 35, this same author says: “Be- 595, 42 L. ed. 865, 871, 18 Sup. Ct. Rep. 435. fore the passage of the 14th Amendment the In Rawlins v. Georgia, 201 U. S. 638, 50 security of the citizens of the several states L. ed. 899, 26 Sup. Ct. Rep. 560, 5 Ann. Cas. for due process of law in proceedings by 783, it was contended that, because many the state lay in its institutions alone. Even lawyers, preachers, doctors, engineers, fireif due process was denied, the Federal gov- men, and dentists were excluded from jury ernment had no right to interfere. The 14th service in Georgia, by the jury commis. Amendment changed this condition of af. sioners failing and refusing to put any of fairs. It made it a matter of national con- the names of the classes excluded in the jury cern that the state should not deny due box, the defendant had rights under the process (of law] to its citizens and to others. ' 14th Amendment. In delivering the opinion

course

of the court in that case, Mr. Justice | trivial character, was of a severe, and often Holmes said: "At the argument be- of a shocking, nature. Under that system fore us the not uncommon misconception the courts were disposed to require that the seemed to prevail that the requirement of technical forms and methods of procedure due process of law took up the special pro- should be fully complied with. But with visions of the state Constitution and laws | improved methods of procedure and greater into the 14th Amendment for the purposes privileges to the accused, any reason for of the case, so that this court would revise such strict adherence to the mere formali. the decision of the state court that the ties of trial would seem to have passed local provisions had been complied with. away, and we think that the better opinion, This is a mistake. If the state Constitu- when applied to a situation such as now tion and laws as construed by the state confronts us, was expressed in the dissentcourt are consistent with the 14th Amending opinion of Mr. Justice Peckham, speakment, we can go no further. The only ques. ing for the minority of the court in the tion for us is whether a state could author- Crain Case, 162 U. S. 625, 649, 40 L. ed. ize the course of proceedings adopted, if 1097, 1104, 16 Sup. Ct. Rep. 952, 960, when that course were prescribed by its Consti- he said: Here the defendant could not tution in express terms."

have been injured by an inadvertence of In the case of Garland v. Washington, that nature. He ought to be held to have 232 U. S. 642, 58 L. ed. 772, 34 Sup. Ct. waived that which, under the circumstances, Rep. 456, it was held that “a conviction would have been a wholly unimportant forupon à second and amended information, mality. A waiver ought to be conclusively after a prior conviction under the original implied where the parties had proceeded as information had been set aside and a new if defendant had been duly arraigned and trial granted, was not wanting in the due a formal plea of not guilty had been interprocess of law guaranteed by U. S. Const. posed, and where there was no objection 14th Amend. because no arraignment or made on account of its absence until, as in plea was had upon the second information, this case, the record was ght to this where, without raising that specific objec- court for review. It would be inconsistent tion before trial, the accused had made cer- with the due administration of justice to tain objections to such information, and permit a defendant under such circumwas put to a trial thereon before a jury stances to lie by, say nothing as to such in all respects as though he had entered a an objection, and then for the first time formal plea of not guilty.”

urge it in this court.'» In delivering the opinion of the court See Trono v. United States, 199 U. S. 521, (which was unanimous), Mr. Justice Day 50 L. ed. 292, 26 Sup. Ct. Rep. 121, 4 Ann. said in part: “Due process of law, this cas. 773. court has held, does not require the state Authorities might be multiplied to the efto adopt any particular form of procedure, fect that if the state laws, as construed by so long as it appears that the accused has the state courts, are not inconsistent with had sufficient notice of the accusation and an the provisions of the 14th Amendment, adequate opportunity to defend himself in the there is no denial of due process of law prosecution. Togers v. Peck, 199 U. S. 425, within the meaning of that provision of the 435, 50 L. ed. 256, 260, 26 Sup. Ct. Rep. Federal Constitution. 87, 90, and previous cases in this court Article 1, § 1, | 4, of the Constitution of there cited. Tried by this test, it cannot the state of Georgia (Civil Code, g 6360), for a moment be maintained that the want declares that “no person shall be deprived of formal arraignment deprived the accused of the right to prosecute or defend his own of any substantial right, or in any wise cause in any of the courts of this state, in changed the course of trial to his disad person, by attorney, or both.” vantage. All requirements of due process By $ 6079 of the Civil Code of 1910 it is of law in criminal trials in a state, as laid provided that “the several superior courts down in the repeated decisions of this court, of this state shall have power to correct were fully met by the proceedings had errors and grant new trials in any cause against the accused in the trial court. or collateral issue depending in any of the

Technical objections of this char- said courts, in such manner and under such acter were undoubtedly given much more rules and regulations as they may establish weight formerly than they are now. Such according to law and the usages and cusrulings originated in that period of English toms of courts.” history when the accused was entitled to And see $$ 6080 et seq. as to the profew rights in the presentation of his de- cedure in such cases. fense, when he could not be represented by Provision is made that cases tried in the counsel, nor heard upon his own oath, and superior courts may be reviewed by the suwhen the punishment of offenses, even of a'preme court, which has appellate jurisdic

tion to hear and determine all cases, civil, this court has decided a number of times and criminal, that may come before it, and that objections to the reception of a verdict to grant judgments of affirmance or re in the absence of the defendant, and to reversal, etc. Civil Code, $ 6103. And how charging the jury in the absence of the prisstands the case with reference to our state oner, and similar alleged errors, can be Constitution and laws as affording the de- made in a motion for a new trial. In Wade fendant due process of law? Article 1, § 1, v. State, 12 Ga. 25, the defendant (a ver[ 3, of the Constitution of Georgia (Civil dict for assault with intent to rape being Code 1910, § 6359), provides that “no per rendered against him) made a motion for son shall be deprived of life, liberty, or a new trial; one of the grounds being that property, except by due process of law.” | the court read testimony taken down by This provision of the state Constitution is the court to the jury in the absence of the in substantial accord with the 14th Amend- | prisoner, and without consent of the prisment to the Constitution of the United | oner's counsel. It was held in that case States, which declares that "no state shall that “The court has no more authority make or enforce any law which shall abridge under the law to read over testimony to the the privileges or immunities of citizens of jury, affecting the life or liberty of the the United States; nor shall any state de defendant, in his absence, than it has to prive any person of life, liberty, or prop- examine the witnesses in relation thereto erty, without due process of law; nor deny | in his absence.” to any person within its jurisdiction the A new trial was accordingly granted. The equal protection of the laws.” Civil Code, court merely treated the ground of the mo§ 6700.

tion for a new trial as an irregularity, and Thus it will be seen that provision has not as a nullity. In Martin v. State, 51 been made in "the law of the land" by Ga. 567, 1 Am. Crim. Rep. 536, the dewhich all who are charged with crime can fendant was indicted for simple larceny, make their defense, and in case of convic and the court charged the jury the second tion in the trial court they can make a time in the absence of the defendant and motion for a new trial in that court on his counsel. This court did not treat the account of any alleged errors which may verdict of guilty as a nullity, but said: have been committed in the trial court. If “As this important privilege was lost to the motion is denied by the trial court, the the defendant in this case, and at a critical accused can take the case to the supreme stage of the trial, through a mistake of the court by writ of error, or by direct bill of state's counsel, at least it is positively so exceptions, and have the case reviewed. We stated, by defendant's counsel, and doubt. think it cannot be said, therefore, in view less the court was misled by it, we think of the ample provisions made by the Con- that there should be a new trial.” stitution and laws of Georgia for anyone In Bonner v. State, 67 Ga. 510, there accused of crime to exercise his right of was an indictment for murder, and there defense in our courts, that he is denied was a conviction for voluntary manslaugh"due process of law,” or the equal protection ter. A motion for a new trial was made, of the laws. See Frank v. State, 141 Ga. which was overruled, and the defendant ex243, 80 S. E. 1016.

cepted. A new trial was granted by this 2. In this state a defendant charged with court, it being held: "in a criminal case crime and tried by a jury is given the right, the prisoner has the right to be present in by motion for a new trial, to have reviewed person throughout the trial. Therefore for a verdict and judgment rendered against him, the judge to recharge the jury while the and have it set aside for an illegality, or prisoner was absent and in confinement, irregularity amounting to harmful error, in although his counsel may have been present the trial, including such grounds as the re- and kept silent, was error.” ception of a verdict in his absence; but, In Wilson v. State, 87 Ga. 583, 13 S. E. where such motion is made, it should in 566, there was indictment and trial for mur. clude all proper grounds which were at the der, and a motion for a new trial. The time known to the defendant or his counsel, trial court recharged the jury in the abor which by reasonable diligence could have sence of the defendant. This court held this been discovered. Leathers v. Leathers, 138 to be cause for a new trial. And to the Ga. 740, 76 S. E. 44. A motion in arrest of same effect see Tiller v. State, 96 Ga. 430, judgment is also available to the defendant 23 S. E. 825; Hopson v. State, 116 Ga. 90, in a proper case, but a motion in arrest of 42 S. E. 412. judgment must be made during the term of It will thus be seen that this court has court at which the judgment was obtained, held that a motion for a new trial is an and must be predicated upon some defect! available remedy in case where, during which appears upon the face of the record | progress of the trial of one charged with or pleadings. Civil Code 1910, § 5958. But'a felony, some step is taken by the court

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during the enforced absence of the defend-, up his whole case as he expects to stand
ant, without his consent, and in such case upon it for all time; and if he does not do
the verdict rendered against the defendant it, neither he nor his friends can repair the
will not be treated as a nullity, but it will error' afterwards."
be set aside and a new trial granted. It In support of his contention, the plaintiff
will also be seen that, where a motion for in error cites the case of Hopt v. Utah, 110
a new trial is made, the defendant must U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep.
set out in that motion all that is known 202, 4 Am. Crim. Rep. 417. Hopt was tried
to him at the time, or by reasonable dili. on an indictment for murder, found guilty,
gence could have been known by him, as and sentenced to suffer death. The judg.
grounds for a new trial.

ment was affirmed by the supreme court of
Did the defendant in the instant case the territory of Utah. Upon writ of error
know at the time he made his motion for to the Supreme Court of the United States
a new trial that he was absent without the judgment was reversed and the case re-
his consent when the verdict of guilty was manded, with instructions to order a new
rendered against him? He must of neces. trial. A statute of Utah provided "if the
sity have known it, and likewise his counsel. indictment is for a felony, the defendant
In one ground of his motion for a new must be personally present at the trial;
trial (which was reviewed and passed on but if for a misdemeanor, the trial may be
by this court in the case of Frank v. State, had in the absence of the defendant.” Utah
supra), it was alleged: “Defendant was Comp. Laws 1888, § 4998.
not in the court room when the verdict The triors of the competency of the jur-
was rendered, his presence having been ors, appointed by the court, conducted their
waived by his counsel.”

examination of the jurors in a different When one convicted of crime makes a room, and tried the grounds of challenge motion for a new trial, it is his duty to out of the presence as well of the court as include everything in it which was appro of the defendant and his counsel. The priate to such a motion and which was Supreme Court of the United States, in known to him at the time. As we have construing the statute of Utah, said that seen, the defendant could have made the under their construction the trial, by triquestion under consideration in the motion ors appointed by the court, of challenges for a new trial. In Daniels v. Towers, 79 of proposed jurors in felony cases, must be Ga. 785, 7 S. E. 120, a judgment of con- had as well in the presence of the court viction for felony had been affirmed by the as of the accused, and that such presence supreme court on writ of error brought by cannot be dispensed with. But it will be the defendant, and this court held that the observed that the decision was placed upon legality of his conviction could not be a construction of the statute of Utah which brought into question by writ of habeas required the personal presence of the accorpus sued out by him, save for the want cused at every stage of the trial. It was of jurisdiction appearing on the face of said by Mr. Justice Harlan, who delivered the record as brought from the court below the opinion, that "all doubt upon the subto the supreme court. In delivering the ject is removed by the express requirement, opinion of the court, Judge Bleckley said not that the defendant may, but, where the (p. 789): “We rest the case upon the gen. indictment is for a felony, must, be 'pereral rule that after a judge of the superior sonally present at the trial.'" court has presided in any case in the su- The absence of the defendant, however, perior court of any county, and the judg. was treated as an irregularity, as shown ment rendered at the trial has been affirmed by the judgment remanding the case and by this court, it is to be taken for all pur- ordering that a new trial be had. poses that it was a legal trial and judgment, Ball v. United States, 140 U. S. 118, 35 and cannot be questioned for anything but L. ed. 377, 11 Sup. Ct. Rep. 761, was also the want of jurisdiction appearing upon the relied upon. In that case it did not affirmface of the proceedings as ruled upon here. atively appear from the record that the deIf there is more record below, and the plain fendants were present when the sentence tiff in error, after conviction, does not bring was pronounced upon them. It was said it up, it is his own misfortune. He had that "at common law it was essential, in a an opportunity to bring it up. He must trial for a capital offense, that the prisoner abide the judgment upon the record which should be present, and that it should appear he brings here; and if the judgment is of record that he was asked before sentence legal according to that record, he must take whether he had anything to say why it the consequences. It will not do to allow should not be pronounced.” him to bring up his case in sections, The defendants were convicted of murder, whether there is a trial of it by a court and filed a motion for a new trial, and to divided in sections or not. He must bring 'arrest the judgment, both on the same date,

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but whether each along with the other mo- I had a motion to set aside such verdict been tion is not clear. The case was remanded, made on the ground of his absence, it should with direction to quash the indictment, be- have been granted." By the motion in arcause it failed to show the time and place rest of judgment the defendant sought to of death. 140 U. S. 133. In delivering the arrest the judgment as a nullity. But the opinion of the court, Chief Justice Fuller i court said that no motion under 4629 of said (p. 132): “We do not think that the the Code then in force could be sustained fact of the presence of the prisoners can by for any matter not affecting the real merits fair intendment be collected from the rec. of the offense charged in the indictment. ord; no mention being made to that effect | The judgment of the court below, overruling in the order, not appearing therefrom the motion in arrest of judgment, was there. that the sentence was read or orally deliv- fore affirmed. The court also said: “That ered to them, and the usual questions not it was the legal right of the defendant to having been propounded.”

have been present when the verdict was The Chief Justice further said: “We are rendered by the jury we entertain no doubt, clear that the indictment is fatally defec- and if a motion had been made to set aside tive, and that a capital conv on, even if the verdict on the ground of his absence, otherwise regular, could not be sustained that motion should have been granted by thereon."

the court.” While it seems to be the practice of the This last statement, from an examination Federal courts, in capital felonies, that the of the record, is obiter. But what was probrecord should show that the defendant was ably meant by a motion to set aside was in present and was asked whether he had any- the sense of being a motion for a new trial, thing to say why sentence should not be as such motions have been likened to mopronounced, it has never been the practice tions in arrest and to set aside. See Presof this state “to enter on the record the cott v. Bennett, 50 Ga. 266, 272, where fact that the prisoner and his counsel were Judge Trippe said: “It is true that a mopresent when the verdict was rendered, and tion entitled a motion to set aside is some. when the sentence was pronounced, and from times made for matters extrinsic the arraignment to sentence, or that the pris- pleadings or record. In such cases they are

was asked, before sentence, whether practically more to be likened unto motions there was any reason why sentence should for new trials, and substantially are the not be pronounced upon him. The silence same in form and effect.” of the record as to such facts is, therefore, This is probably what Judge Warner no cause for arresting the judgment or set- meant by the obiter expression quoted above ting it aside.” Rawlins v. Mitchell, 127 Ga. from the Nolan Case; for, from the cases 24, 55 S. E. 958.

cited in which opinions were delivered prior See also Nolan v. State, 53 Ga. 137 (3). to that utterance, it will be seen that a mo.

Counsel for the defendant rely on the tion for a new trial was an av able remedy cases of Nolan v. State, 53 Ga. 137, and in such cases, and it will be noted, too, that Nolan v. State, 55 Ga. 521, 21 Am. Rep. Judge Warner presided and delivered the 284, 1 Am. Crim. Rep. 532. In the former opinion of the court in the Prescott Case, case the defendant was indicted for the in which Judge Trippe used the language offense of murder, and the jury found him quoted above in his concurring opinion. guilty of voluntary manslaughter. When In the Nolan Case, reported in 55 Ga. 521, the jury were out, and before the verdict 21 Am. Rep. 281, 1 Am. Crim. Rep. 532, was returned, counsel for the accused con Nolan was placed on trial for the offense sented that, if the jury agreed on a verdict of murder. Evidence was submitted to the that night, they could return a sealed ver. jury, argument had, and a charge delivered dict to the clerk of the court and disperse. by the court. Subsequently, while the de. They did not agree that night, but did on fendant was confined in jail, in the absence the following day, and their verdict was of his counsel, and without his consent, the received in the absence of the prisoner and jury returned a verdict finding him guilty his counsel. The defendant made a mo- of voluntary manslaughter, and were distion in arrest of judgment, on the ground charged. The defendant at a subsequent that the consent extended only in case of term moved to set aside the verdict renagreement that night, and not to the next dered against him on the ground that it day. It was held: “That consent of counsel was rendered and published in his absence that, should the jury agree that night, they and without his right of being present hav. might return a sealed verdict to the clerk ing been waived. The trial court ordered and disperse, cannot be construed to extend accordingly. Subsequently the defendant to a verdict found on the next day. It was was arraigned again upon the same inthe legal right of the defendant to be pres. dictment, and he pleaded specially in bar ent when the verdict was rendered, and, these facts as constituting his having been

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