Gravitt v. State , 1928 Ga. LEXIS 61 ( 1928 )

Atkinson, J.

1. “When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings.” Civil Code (1910), § 5957. “A motion in arrest of judgment . . differs from a motion to set aside a judgment, in this: The motion in arrest of judgment must be made during the term at which such judgment was obtained, while a motion to set it aside may be made at any time within the statute of limitations.” Civil Code (1910), § 5958.

2. In Davis v. State, 40 Ga. 229, it was stated: “Defendants were indicted for the offense of simple larceny, and charged with having wrongfully and fraudulently taken and carried away a certain ‘ white hog/ without alleging the hog to have been of any value: Held, that by the common-law, at the time of our statute adopting the same, the value of the property, in an indictment for simple larceny, was required to be alleged and proved on the trial, and that that rule of the common law is still of force in this State, and a failure to allege the .value of the property alleged to have been stolen, in the indictment, is a good ground for arresting the judgment after verdict.” The case under consideration differs from the Davis case, in that the motion was to set aside a judgment, as distinguished from a motion in arrest of judgment, and was not filed during the term at which the judgment eompiained of was rendered.

3. In McDonald v. State, 126 Ga. 536 (55 S. E. 235), it was said: “A motion to set aside the judgment is not the appropriate remedy in a criminal case if the indictment is void. The judgment may be arrested upon motion made during the term at which the verdict is rendered, or the prisoner may be discharged upon a writ of habeas corpus at any time thereafter, if no question as to the validity- of the indictment was adjudicated at the trial. Griffin v. Eaves, 114 Ga. 65 [39 S. E. 913]. See also Moore v. Wheeler, 109 Ga. 62 [35 S. E. 116]; Duren v. Stephens, ante, 496 [54 S. E. 1045]. . . In Regopoulas v. State, 116 Ga. 596 [42 S. E. 1014], no question was made as to the remedy by motion to set aside being appropriate.” See Brown v. State, 150 Ga. 585 (104 S. E. 428).

4. The Court of Appeals did not err in affirming the judgment of the trial court refusing to set aside the judgment.

Judgment affirmed.

All the Justices concur. Russell, J., and Hines, J., concur in the result only.