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. Mr. Warren Grice, Attorney General, also for the State: The voluntary absence of the accused at the time the verdict is received will not vitiate the verdict. Cawthon v. State, 119 Ga. 395, 46 S. E. 897; Barton v. State, 67 Ga. 653, 44 Am. Rep. 743; Robson v. State, 83 Ga. 167, 9 S. E. 610. supervise the performance of this duty, and transferred from the state to the Federal Supreme Court the ultimate decision on the question of the presence of due process in all proceedings affecting life, liberty, and property. But under the amendment the authority of the Federal court is merely to determine whether the state, by some official action, has provided due process or has 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. Tiller v. State, 96 Ga. 430, 23 S. E. 825; Hill v. State, 118 Ga. 21, 44 S. E. 820; Cawthon v. State, 119 Ga. 395, 46 S. E. 897. Waiver by the attorney is binding on the client. proceedings void. The power of the Federal government ordinarily ends with that act. Thus the primary duty of providing for the protection of life, liberty, and property by due process of law rests still with the states, and the 14th Amendment oper Mitchum 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 cre court: 1. Did the absence of the defendant, under the foregoing statement of facts, at the time that the verdict finding him guilty of murder was received by the court and the jury trying him was discharged, render the verdict void and of no legal effect? It is insisted by the defendant that the reception of the verdict in his involuntary absence, while he was confined in jail, was in violation of the due process clauses of the state and Federal Constitutions, and that it denied him the equal protection of the laws. "Due process of law, as the meaning of the words has been developed in American decisions, implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. The phrase is and has long been exactly equivalent to and convertible with the older expression 'the law of the land.' The basis of due process, orderly proceedings and an opportunity to defend, must be inherent in every body of law or custom as soon as it advances beyond the stage of uncontrolled vengeance." McGehee, Due Process of Law, 1 citing Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. On page 35, this same author says: "Before the passage of the 14th Amendment the security of the citizens of the several states for due process of law in proceedings by the state lay in its institutions alone. Even if due process was denied, the Federal government had no right to interfere. The 14th Amendment changed this condition of affairs. It made it a matter of national concern that the state should not deny due process [of law] to its citizens and to others. ated to secure. It did not radically change the whole theory of the relations of the state and Federal governments to each other and of both governments to the people.” See United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Re Kemmler, 136 U. S. 436-438, 34 L. ed. 519, 521, 10 Sup. Ct. Rep. 930. "The Federal Supreme Court has again and again declared that, when the highest court of a state has acted within its jurisdiction and in accordance with its construction of the state Constitution and lawe, very exceptional circumstances will be necessary in order that the Federal Supreme Court may feel justified in saying that there has been a failure of due process of law. 'We might ourselves have pursued a different course, but that is not the test. The plaintiff in error must have been deprived of one of those fundamental rights, the observance of which is indispensable to the liberty of the citizen, to justify our interference.' For especially in cases involving procedure is it true that 'due process of law means law in its reg ular course of administration through courts of justice.'" McGehee, Due Process of Law, 167, citing Allen v. Georgia, 166 U. S. 138, 41 L. ed. 949, 17 Sup. Ct. Rep. 525, which case is cited and approved in Wilson v. North Carolina, 169 U. S. 586, 595, 42 L. ed. 865, 871, 18 Sup. Ct. Rep. 435. In Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560, 5 Ann. Cas. 783, it was contended that, because many lawyers, preachers, doctors, engineers, firemen, and dentists were excluded from jury service in Georgia, by the jury commissioners failing and refusing to put any of the names of the classes excluded in the jury box, the defendant had rights under the 14th Amendment. In delivering the opinion technical forms and methods of procedure should be fully complied with. But with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away, and we think that the better opinion, when applied to a situation such as now confronts us, was expressed in the dissenting opinion of Mr. Justice Peckham, speak 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 due process of law took up the special provisions of the state Constitution and laws into the 14th Amendment for the purposes of the case, so that this court would revise the decision of the state court that the local provisions had been complied with. This is a mistake. If the state Constitution and laws as construed by the state court are consistent with the 14th Amendment, 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 authorize the course of proceedings adopted, if that course were prescribed by its Constitution in express terms." In the case of Garland v. Washington, 232 U. S. 642, 58 L. ed. 772, 34 Sup. Ct. Rep. 456, it was held that "a conviction upon a second and amended information, after a prior conviction under the original information had been set aside and a new trial granted, was not wanting in the due process of law guaranteed by U. S. Const. 14th Amend. because no arraignment or plea was had upon the second information, where, without raising that specific objection before trial, the accused had made certain objections to such information, and was put to a trial thereon before a jury in all respects as though he had entered a formal plea of not guilty." Crain Case, 162 U. S. 625, 649, 40 L. ed. 1097, 1104, 16 Sup. Ct. Rep. 952, 960, when he said: 'Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which, under the circumstances, would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.'" In delivering the opinion of the court (which was unanimous), Mr. Justice Day said in part: "Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Rogers v. Peck, 199 U. S. 425, 435, 50 L. ed. 256, 260, 26 Sup. Ct. Rep. 87, 90, and previous cases in this court there cited. Tried by this test, it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right, or in any wise changed the course of trial to his disad-person, by attorney, or both." vantage. All requirements of due process of law in criminal trials in a state, as laid down in the repeated decisions of this court, were fully met by the proceedings had against the accused in the trial court. See Trono v. United States, 199 U. S. 521, 50 L. ed. 292, 26 Sup. Ct. Rep. 121, 4 Ann. Cas. 773. Authorities might be multiplied to the effect that if the state laws, as construed by the state courts, are not inconsistent with the provisions of the 14th Amendment, there is no denial of due process of law within the meaning of that provision of the Federal Constitution. Article 1, § 1, 4, of the Constitution of the state of Georgia (Civil Code, § 6360), declares that "no person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this state, in By § 6079 of the Civil Code of 1910 it is provided that "the several superior courts of this state shall have power to correct errors and grant new trials in any cause or collateral issue depending in any of the said courts, in such manner and under such rules and regulations as they may establish according to law and the usages and customs of courts." And see §§ 6080 et seq. as to the procedure in such cases. Provision is made that cases tried in the superior courts may be reviewed by the supreme 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 ver3, 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 equal protection of the laws." Civil Code, § 6700. Thus it will be seen that provision has been made in "the law of the land" by which all who are charged with crime can make their defense, and in case of conviction in the trial court they can make a motion for a new trial in that court on account of any alleged errors which may have been committed in the trial court. If the motion is denied by the trial court, the accused can take the case to the supreme court by writ of error, or by direct bill of exceptions, and have the case reviewed. We think it cannot be said, therefore, in view of the ample provisions made by the Constitution and laws of Georgia for anyone accused of crime to exercise his right of defense in our courts, that he is denied "due process of law," or the equal protection | of the laws. See Frank v. State, 141 Ga. 243, 80 S. E. 1016. 2. In this state a defendant charged with crime and tried by a jury is given the right, by motion for a new trial, to have reviewed a verdict and judgment rendered against him, and have it set aside for an illegality, or irregularity amounting to harmful error, in the trial, including such grounds as the reception of a verdict in his absence; but, where such motion is made, it should include all proper grounds which were at the time known to the defendant or his counsel, or which by reasonable diligence could have been discovered. Leathers v. Leathers, 138 Ga. 740, 76 S. E. 44. A motion in arrest of judgment is also available to the defendant in a proper case, but a motion in arrest of judgment must be made during the term of court at which the judgment was obtained, and must be predicated upon some defect which appears upon the face of the record or pleadings. Civil Code 1910, § 5958. But A new trial was accordingly granted. The court merely treated the ground of the motion for a new trial as an irregularity, and not as a nullity. In Martin v. State, 51 Ga. 567, 1 Am. Crim. Rep. 536, the defendant was indicted for simple larceny, and the court charged the jury the second time in the absence of the defendant and his counsel. This court did not treat the verdict of guilty as a nullity, but said: "As this important privilege was lost to the defendant in this case, and at a critical stage of the trial, through a mistake of the state's counsel, at least it is positively so stated, by defendant's counsel, and doubtless the court was misled by it, we think that there should be a new trial." In Bonner v. State, 67 Ga. 510, there was an indictment for murder, and there was a conviction for voluntary manslaughter. A motion for a new trial was made, which was overruled, and the defendant excepted. A new trial was granted by this court, it being held: "in a criminal case the prisoner has the right to be present in person throughout the trial. Therefore for the judge to recharge the jury while the prisoner was absent and in confinement, although his counsel may have been present and kept silent, was error.” In Wilson v. State, 87 Ga. 583, 13 S. E. 566, there was indictment and trial for murder, and a motion for a new trial. The trial court recharged the jury in the absence of the defendant. This court held this to be cause for a new trial. And to the same effect see Tiller v. State, 96 Ga. 430, 23 S. E. 825; Hopson v. State, 116 Ga. 90, 42 S. E. 412. It will thus be seen that this court has held that a motion for a new trial is an available remedy in a case where, during progress of the trial of one charged with a felony, some step is taken by the court 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 will also be seen that, where a motion for a new trial is made, the defendant must set out in that motion all that is known to him at the time, or by reasonable diligence could have been known by him, as grounds for a new trial. Did the defendant in the instant case know at the time he made his motion for a new trial that he was absent without his consent when the verdict of guilty was rendered against him? He must of necessity have known it, and likewise his counsel. In one ground of his motion for a new trial (which was reviewed and passed on by this court in the case of Frank v. State, supra), it was alleged: "Defendant was not in the court room when the verdict was rendered, his presence having been waived by his counsel." When one convicted of crime makes a motion for a new trial, it is his duty to include everything in it which was appropriate to such a motion and which was known to him at the time. As we have seen, the defendant could have made the question under consideration in the motion for a new trial. In Daniels v. Towers, 79 Ga. 785, 7 S. E. 120, a judgment of conviction for felony had been affirmed by the supreme court on writ of error brought by the defendant, and this court held that the legality of his conviction could not be brought into question by writ of habeas corpus sued out by him, save for the want of jurisdiction appearing on the face of the record as brought from the court below to the supreme court. In delivering the opinion of the court, Judge Bleckley said (p. 789): "We rest the case upon the general rule that after a judge of the superior court has presided in any case in the superior court of any county, and the judgment rendered at the trial has been affirmed by this court, it is to be taken for all purposes that it was a legal trial and judgment, and cannot be questioned for anything but the want of jurisdiction appearing upon the face of the proceedings as ruled upon here. If there is more record below, and the plaintiff in error, after conviction, does not bring it up, it is his own misfortune. He had an opportunity to bring it up. He must abide the judgment upon the record which he brings here; and if the judgment is legal according to that record, he must take the consequences. It will not do to allow him to bring up his case in sections, whether there is a trial of it by a court divided in sections or not. He must bring In support of his contention, the plaintiff in error cites the case of Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417. Hopt was tried on an indictment for murder, found guilty, and sentenced to suffer death. The judg ment was affirmed by the supreme court of the territory of Utah. Upon writ of error to the Supreme Court of the United States the judgment was reversed and the case remanded, with instructions to order a new trial. A statute of Utah provided "if the indictment is for a felony, the defendant must be personally present at the trial; but if for a misdemeanor, the trial may be had in the absence of the defendant." Utah Comp. Laws 1888, § 4998. The triors of the competency of the jurors, appointed by the court, conducted their examination of the jurors in a different room, and tried the grounds of challenge out of the presence as well of the court as of the defendant and his counsel. The Supreme Court of the United States, in construing the statute of Utah, said that under their construction the trial, by triors appointed by the court, of challenges of proposed jurors in felony cases, must be had as well in the presence of the court as of the accused, and that such presence cannot be dispensed with. But it will be observed that the decision was placed upon a construction of the statute of Utah which required the personal presence of the accused at every stage of the trial. It was said by Mr. Justice Harlan, who delivered the opinion, that "all doubt upon the subject is removed by the express requirement, not that the defendant may, but, where the indictment is for a felony, must, be 'personally present at the trial.'" The absence of the defendant, however, was treated as an irregularity, as shown by the judgment remanding the case and ordering that a new trial be had. Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761, was also relied upon. In that case it did not affirmatively appear from the record that the defendants were present when the sentence was pronounced upon them. It was said that "at common law it was essential, in a trial for a capital offense, that the prisoner should be present, and that it should appear of record that he was asked before sentence whether he had anything to say why it should not be pronounced." The defendants were convicted of murder, and filed a motion for a new trial, and to arrest the judgment, both on the same date, 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 of death. 140 U. S. 133. In delivering the opinion of the court, Chief Justice Fuller said (p. 132): "We do not think that the fact of the presence of the prisoners can by fair intendment be collected from the record; no mention being made to that effect | in the order, it not appearing therefrom that the sentence was read or orally delivered to them, and the usual questions not having been propounded." The Chief Justice further said: "We are clear that the indictment is fatally defective, and that a capital conviction, even if otherwise regular, could not be sustained thereon." While it seems to be the practice of the Federal courts, in capital felonies, that the record should show that the defendant was present and was asked whether he had anything to say why sentence should not be pronounced, it has never been the practice of this state "to enter on the record the fact that the prisoner and his counsel were present when the verdict was rendered, and when the sentence was pronounced, and from arraignment to sentence, or that the pris rest of judgment the defendant sought to arrest the judgment as a nullity. But the court said that no motion under § 4629 of the Code then in force could be sustained for any matter not affecting the real merits of the offense charged in the indictment. The judgment of the court below, overruling the motion in arrest of judgment, was therefore affirmed. The court also said: "That it was the legal right of the defendant to have been present when the verdict was rendered by the jury we entertain no doubt, and if a motion had been made to set aside the verdict on the ground of his absence, that motion should have been granted by the court." This last statement, from an examination of the record, is obiter. But what was probably meant by a motion to set aside was in the sense of being a motion for a new trial, as such motions have been likened to motions in arrest and to set aside. See Prescott v. Bennett, 50 Ga. 266, 272, where Judge Trippe said: "It is true that a motion entitled a motion to set aside is sometimes made for matters extrinsic the pleadings or record. In such cases they are practically more to be likened unto motions for new trials, and substantially are the same in form and effect." This is probably what Judge Warner meant by the obiter expression quoted above from the Nolan Case; for, from the cases cited in which opinions were delivered prior to that utterance, it will be seen that a motion for a new trial was an available remedy in such cases, and it will be noted, too, that Judge Warner presided and delivered the in which Judge Trippe used the language quoted above in his concurring opinion. See also Nolan v. State, 53 Ga. 137 (3). Counsel for the defendant rely on the cases of Nolan v. State, 53 Ga. 137, and Nolan v. State, 55 Ga. 521, 21 Am. Rep. 284, 1 Am. Crim. Rep. 532. In the former opinion of the court in the Prescott Case, case the defendant was indicted for the offense of murder, and the jury found him 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 deThey 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 havmight return a sealed verdict to the clerking 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 |