placed once in jeopardy, and claimed his į but the mechanical act of receiving the verdischarge. This court held that "a verdict diet, as the consent had provided it should

so received having been, on his motion, set aside as illegal, when afterwards arraigned for trial on the same indictment for the offense before another jury, the prisoner may plead specially his former jeopardy in bar of a second trial, and, if supported by the record and the extrinsic facts, the plea should be sustained, and thereupon the prisoner should be discharged."

be received. If he had been present, the act would have been no less mechanical. In Nolan's Case, 53 Ga. 137, 55 Ga. 521, 21 Am. Rep. 281, 1 Am. Crim. Rep. 532, the event contemplated did not happen."

We conclude from these authorities that the question here raised could have been adjudicated under a motion for a new trial, and that a failure to include this ground in such motion would preclude the defendant, after the denial of the motion, and the affirmance of the judgment by this court, from seeking to set aside the verdict as a nullity.

It will be observed that the defendant in the Nolan Case treated the verdict as a nullity and made a motion to set it aside as such, which was done, instead of making a motion for a new trial, and setting up his defense as an irregularity, and seeking 3. The motion to set aside the verdict a new trial because of some error commit- complains of the reception of the verdict in ted at the trial. In the latter case he the involuntary absence of the defendant, would waive the fact that the verdict was while he was incarcerated in jail, and in a nullity, but insist that it was merely the absence of his counsel. Paragraph 2 of irregular and erroneous, requiring a new the motion avers that he did not waive that trial. Judge Bleckley, delivering the opin-right, nor did he authorize anyone to waive ion in the last Nolan Case, said: "One it for him, nor did he consent that he should trial, and only one for each crime, is a not be present; that he did not know that fundamental principle in criminal proce- the verdict had been rendered and the jury dure, and must be the general rule prac- discharged until after the reception of the tically ministered in all free countries. For verdict and the discharge of the jury; and the public authority, whether king or com- that he did not know of any waiver of his monwealth, to try the same person over and presence made by his counsel until after over again for the same offense, would be sentence of death had been pronounced upon rank tyranny. Though some ex- him. Paragraph 3 of the motion alleges ceptions to the general rule are to be ad- that on the day the verdict was rendered, mitted, as when a new trial is had on the and shortly before the judge who presided prisoner's motion, or when judgment upon on the trial of the case began his charge to a void indictment has been arrested, the the jury, the judge privately conversed with transcendent importance of the rule itself two of the counsel for the defendant, and in requires that the exceptions should be few the conversation referred to the probable and strictly guarded." danger of violence to the defendant and his In the instant case, the defendant made a counsel if he or they were present when the motion for a new trial, which was overruled verdict was rendered and it should be one by the court (paragraphs 6 and 7 of de- of acquittal, and after the judge had thus fendant's motion; also Frank v. State, 141 expressed himself he requested counsel to Ga. 243, 80 S. E. 1016), thus treating the agree that the defendant should not be verdict, not as a nullity, but as an irreg-present at the time the verdict was renularity. In Smith v. State, 59 Ga. 513, 27 |dered and the jury polled; that under these Am. Rep. 393, it was held that, although circumstances counsel did agree with the the prisoner be in custody, he may consent that the verdict shall be received in his absence, and that a verdict thus received was valid, notwithstanding he was at the time confined in jail. The facts in this case were somewhat similar to the Nolan Case as to the agreement. The court said: "He ought to have been brought from the jail, so as to be present at the reception. But we think it was merely an irregularity, and that no matter of substance was involved. Having surrendered his right to poll the jury, no other of any value to him remained, for the exercise of which his presence was important. Had he been in court, the result must have been the same as it was Nothing took place in his absence

judge that the defendant should not be present at the rendition of the verdict, and he was not present at the rendition of the verdict, nor were his counsel present. It is contended that it is the constitutional right of the defendant to be present at every stage of the trial, and that he cannot waive that right, nor can his counsel waive it for him, and that his absence at the reception of the verdict vitiates the whole trial.

It is the undoubted right of a defendant who is indicted for a criminal offense in this state to be present at every stage of his trial. But he may waive his presence at the reception of the verdict rendered in his case. In Cawthon v. State, 119 Ga. 395, 46 S. E. 897, a waiver was made by the de

fendant's counsel in his presence as to his personal presence at the reception of the verdict. This court held in that case:

"8. Even if an attorney, by virtue of the relation of attorney and client existing between himself and one charged with a felony, has no implied authority to waive the right of his client to be present at the reception of the verdict, if the attorney makes an express waiver to this effect in the presence of the client, who does not at the time repudiate the action of his counsel, a verdict afterwards received in the absence of the accused and in consequence of the waiver will not be held to be invalid at the instance of the accused, seeking, after the reception of the verdict, to repudiate the action of his counsel in making the waiver. "9. Before a verdict received in the absence of the accused will be held to be invalid, it is incumbent upon the accused to show that he was in custody of the law at the time the waiver was made, that he made no waiver of his right to be present, and that he did not authorize his counsel to make such waiver for him, and, if an authorized waiver has been made by counsel, that he has not ratified the same or allowed the court to act upon the waiver of counsel after he has notice that the same has been made."

that hold to the contrary is not, in my opinion, satisfactory or by any means conclusive. Counsel is generally much better able to take care of the rights of the accused than he is himself, and the accused is better protected from improvident waivers by his case being left to the control of his counsel than if he were to take charge of the same in his own behalf."

As said by this court in effect in the case of Lampkin v. State, 87 Ga. 517, 13 S. E. 523, it is not sound practice for counsel to make a waiver of their client's presence at the reception of the verdict, take the chances of acquittal for their client, and then, after verdict of guilty, for the defendant to be allowed to repudiate the action of counsel and employ other counsel to set aside the verdict because of the absence of the defendant at the time it was rendered. Who was better prepared to protect the interests of the defendant-trained and expert counsel, or the defendant himself? True, he had the right to conduct the trial in person, if he so desired; but the defendant had committed his case to able and experienced counsel, who, in the exercise of their relation as attorney to the client, waived his right to be present, and they having made the waiver, the defendant by his conduct having acquiesced to it, he should be bound by it.

In the instant case the defendant, in his motion to set aside the verdict as a nullity, says that he did not know of the waiver of his presence made by his counsel. After the verdict of guilty was rendered against him in the trial court, the defendant made a motion for a new trial on various grounds, and, the motion having been overruled, a writ of error was sued out to this court, and the judgment of the lower court was affirmed. See Frank v. State, supra. The seventy-fifth ground of that motion contains the following recital, among others: "The defendant was not in the court room when the verdict was rendered, his presence having been waived by his counsel."

Judge Cobb, who delivered the opinion of the court in the Cawthon Case, after citing a number of authorities pro and con, said (p. 413): "These decisions seem to draw no distinction between a waiver made by counsel in the presence of his client and one made in his absence. While counsel may have no implied authority, growing out of the relation of attorney and client, to make a waiver of this character for his client in his absence, we can see no good reason why the accused would not be bound by an express waiver made in his presence. Such a waiver is to all intents and purposes the waiver of the client. It would be trifling with the court to allow it to act upon a waiver thus made, and then impeach its action on the ground that counsel had been We pause here long enough to say that guilty of an unauthorized act. And while this court will take judicial notice of its we recognize fully that there are limita- own records, and will of its own motion, tions upon the authority of counsel, the or at the suggestion of counsel, inspect the client, even though he be charged with a records of this court in a former appeal capital felony, should not be allowed to im- of the same case. Strickland v. Western & peach the authority of his counsel, when A. R. Co. 119 Ga. 70, 45 S. E. 721; Dimhe acts in his presence, unless he promptly mick v. Tompkins, 194 U. S. 540, 548, 48 repudiates the unauthorized act before the L. ed. 1110, 1113, 24 Sup. Ct. Rep. 780; court bases action upon it. Speaking for and authorities there cited; Mississinewa myself, I am inclined to the opinion that | Min. Co. v. Andrews, 28 Ind. App. 496, 63 the right to make the waiver resides in the counsel, whether the accused be present or not at the time of the waiver; his authority arising from the mere relation of attorney and client. The reasoning of the courts

N. E. 231; Culver v. Fidelity & Deposit Co.
149 Mich. 630, 113 N. W. 9; Studabaker v.
Faylor, 52 Ind. App. 171, 98 N. E. 318;
Mayhew v. State, Tex. Crim. Rep.
- 155
S. W. 191 (5); South Florida Lumber &

Supply Co. v. Read, 65 Fla. 61, 61 So. 125; | to have the motion heard by both the trial Bohanan v. Darden, 7 Ala. App. 220, 60 So. 955; Alabama City G. & A. R. Co. v. Bates, 155 Ala. 347, 46 So. 776 (2); MeNish v. State, 47 Fla. 69, 30 So. 176; Westfall v. Wait, 165 Ind. 353, 73 N. E. 1089, 6 Ann. Cas. 788; 1 Chamberlayne, § 683, p. 850.

The motion under review recites that "the said judge, Hon. L. S. Roan, upon considering the motion for new trial made by this defendant, after the reception of said verdict as above stated, rendered his ment denying said motion, and in rendering said judgment stated that the jury had found the defendant guilty," etc.

court and the supreme court, and after a denial by both courts of the motion, to now come in and by way of a motion to set aside the verdict include matters which were or ought to have been included in the motion for a new trial.

While a defendant indicted for crime in this state has the legal right to be personally present at every stage of his trial, as before stated, there are certain matters which he may waive, and which many prisjudg-oners do waive, at their trial. They may waive copy of indictment, formal arraignment, and list of witnesses before the grand jury, all of which are important rights. They may waive a preliminary hearing before a committal court, a jury of twelve to try them, or any legal objection to jurors who have qualified on their voir dire; they may even waive trial entirely, plead guilty of murder, and be sentenced to hang. Sarah v. State, 28 Ga. 576 (2), 581; Wiggins v. Tyson, 112 Ga. 745, 750, 38 S. E. 86. These are rights personal to the defendant, and it would be absurd to say that when his counsel had waived his presence at the reception of the verdict, and this waiver had been brought to his attention in ample time for him to move for a new trial on that ground, which he fails to do until after he makes a motion for a new trial on other grounds, with knowledge of the fact of his absence when the verdict was rendered, and then, after the motion so made has been finally adjudicated against him, he can successfully move to set aside the verdict as a nullity. We may add that the allegations of the petition show that at the rendition of the verdict the jury was polled by the court, under an agreement had with defendant's counsel when the waiver was made.

When, therefore, the defendant by motion for a new trial invoked from the court a ruling upon alleged errors that had been committed upon the trial (reciting on the face of the motion a knowledge of his absence when the verdict was returned, and the waiver of his presence), he will not now be heard to say that the verdict was a nullity on account of his not being present at its rendition, after the motion for a new trial has been denied, and the judgment denying it affirmed by this court. Frank v. State, supra. And, moreover, an extraordinary motion for a new trial was made, and has likewise been refused, and the judgment overruling it affirmed by this court. Frank v. State, 142 Ga. 617, 83 S. E. 233. He had the right to invoke a ruling on that question in the motion for a new trial, and, failing to do so, he cannot now be heard to say that he will treat the verdict as a nullity and move to have it set aside as such. It would be a reproach upon the court's administration of the law to allow a defendant to make a motion for a new trial, with a knowledge of his absence when the verdict against him was rendered, and have the grounds of the motion adjudicated by the court, and then move to set the verdict aside as void. The defendant necessarily knew, when sentenced by the court, (for he was then present), that the verdict had been rendered against him. His counsel must have known it, for they filed his motion for a new trial. He and they are presumed to know the law. His motion for a new trial recited that his presence at the reception of the verdict had been waived by his counsel. Under these circumstances it must be held that the defendant acquiesced in the waiver of his counsel of his presence at the reception of the verdict. It would be trifling with the court to allow one who had been convicted of crime, and who had made a motion for a new trial on over 100 grounds, including the statement that his counsel had waived Lis presence at the reception of the verdict,

In this state, after a verdict of guilty of murder and the overruling of a motion for a new trial, a writ of error will lie to this court, assigning error on the overruling of the motion. In some jurisdictions the practice is different. But on examination of the cases in other jurisdictions in which a complaint of the reception of a verdict in the absence of the accused was made and sustained, it will be found that very commonly this was treated as a ground for remanding the case for another trial. We know of no provision in the Constitution of the United States, or of this state, nor of any statute, which gives to an accused person a right to disregard the rules of procedure in a state, which afford him due process of law, and demand that he shall move in his own way and be granted absolute freedom because of an irregularity (if there is one) in receiving the verdict. If

an accused person could make some of his | fright does not apply where physical inpoints of attack on the verdict, and reserve juries are caused by a fall consequent upon a faint caused by an explosion due to another points known to him, which he could other's negligence. then have made, to be used as grounds for further attacks on the verdict, there Negligence would be practically no end to a criminal

case.

4. Comparing the grounds of the motion to set aside the verdict in this case on the ground of disorder in the court room during the progress of the trial, of cheering and applause outside the court room, and of the oral remarks of the trial judge before signing the order denying a new trial, with the grounds of the motion for a new trial made in the former record in this case (see Strickland v. Western & A. R. Co. 119 Ga. 70, 45 S. E. 721), when it was here under review upon the denial of that motion

(Frank v. State, 141 Ga. 243, 80 S. E.

explosion

property owner.

liability of

2. One is not liable for injuries caused by an explosion of a tank of gas upon his premises, if it was not at the time in his custody and control.

folk County for the determination of

EPORT by the Superior Court for Nor

1016), it will be seen that the questions there made as to these matters were sub- the Supreme Judicial Court of an action stantially the same as those sought to be brought to recover damages for personal inraised by the present motion, and the ques-juries caused by the explosion of a tank of tions there raised were adjudicated by this gas. Judgment for defendant. court in that case adversely to the contentions of the defendant. This court, therefore, will not again consider those same questions when sought to be raised by the

motion to set aside the verdict now under review.

The facts are stated in the opinion. Mr. Harold C. Haskell, for plaintiff: Defendant owed to the plaintiff the duty of using reasonable care to keep the premises where she was employed in a safe and suitable condition, she being there by implied invitation as the employee of a joint occupant of said premises.

Wright v. Perry, 188 Mass. 268, 74 N. E. 328, 18 Am. Neg. Rep. 461; Gile v. J. W. Bishop Co. 184 Mass. 413, 68 N. E. 837.

The doctrine of res ipsa loquitur applies in this case.

Beattie v. Boston Elev. R. Co. 201 Mass. 3, 86 N. E. 920; McNamara v. Boston & M. R. Co. 202 Mass. 491, 89 N. E. 131; Minihan v. Boston Elev. R. Co. 197 Mass. 367, 83 N. E. 871; O'Donnell v. Boston Elev. R. Co. 205 Mass. 200, 90 N. E. 977; Pinney v. Hall, 156 Mass. 225, 30 N. E. 1016; Cassady v. Old Colony Street R. Co. 184 Mass. 156, 63 L.R.A. 285, 68 N. E. 10, 14 Am. Neg. Rep. 559; Levin v. New York C. R. Co. 133 N. Y. Supp. 467; Kearner v. Charles S. Tanner Co. 31 R. I. 203, 29 L.R.A. (N.S.) 537, 76 Atl. 833; White v. Boston & A. R. Co. 144 Mass. 404, 11 N. E. 552, 9 Am. Neg. Cas.

1. The rule disallowing damages for 461.

Note.

Right to recover for physical in- | III. Fright resulting from wilful tort, 833. jury resulting from fright caused by IV. Fright because of another's danger, a wrongful act.

I. Introduction, 830.

II. Fright caused by negligence.

a. Treating physical injury resulting
from fright as a mere incident
of the fright, 832.

b. Remoteness of the damage, 832.
c. Doctrine of expediency, 832.
d. Miscellaneous cases, 833.

833.

1. Introduction.

The earlier cases on this question are discussed in the note to Huston v. Freemansburg, 3 L.R.A. (N.S.) 49, and supplement thereto appended to the case of Chittick v. Philadelphia Rapid Transit Co. 22 L.R.A. (N.S.) 1073.

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