Wells v. Terrell , 121 Ga. 368 ( 1904 )

Lamar, J.

(After stating the foregoing facts.) The defendant was charged with a misdemeanor punishable by fine or imprisonment. On the call of the case he was absent; but his authorized counsel offered to enter a plea of guilty for him. This the court refused to. allow, holding that it had no jurisdiction to enter upon the trial or to receive the plea in the prisoner’s absence. The rule in the several States on the subject is not uniform. In some it is in express terms provided by statute that a trial for a misdemeanor may be had in the defendant’s absence. Without statute some courts hold that while the defendant is never entitled to this privilege as matter of right, yet, for sickness or other good cause shown, the court may in its discretion permit one charged with a misdemeanor to be tried therefor in his absence. Others limit the right to be thus tried to those cases in which the punishment can only be by fine. And in a few cases it seems to have been held that the prisoner must be present at the time the trial on any indictment begins. Slocovitch v. State, 46 Ala. 227; Ex parte Tracy, 25 Vt. 93 ; U. S. v. Mayo, 1 Curt. C. C. 433, 68 Am. Dec. 320; 1 Bish. Cr. Pr. (3d ed.) § 268; Clark’s Crim. Proc. 427. The English decisions are not clear on the point here involved, inasmuch as it does not appear what punishment could have been inflicted in the particular cases reported. Besides, the rulings may have been affected by the fact that at common law an arraignment does not seem to have been required in prosecutions for misdemeanor. Lynch v. State, 31 N. W. 348; Griffin v. Com., 66 S. W. 740; Salfner v. State, 35 Atl. Rep. 885; Johnson v. People, 22 Ill. 317. The question has not been passed on by this court. In Barton v. State, 67 Ga. 653; Robson v. State, 83 Ga. 167; Hill v. State, 118 Ga. 24, it was held that the defendant could not, by an escape or voluntary absence on bond, nullify a trial otherwise legal, and by his own act of non-attendance prevent the rendition of a verdict. But in each of those cases the defendant was present at the time the trial began. There being, therefore, no direct ruling on the subject in this State, the question must be decided on general principles as affected by the Penal Code. It is silent on the direct point here involved. But its provisions as to the formalities attending a trial, and particularly those on the subject of arraignment (Penal Code, § 946), are full of implications that the defendant must be present before the court may enter upon the trial, or accept a plea of guilty, which makes a trial unnecessary.. Except in proceedings against corporations (Penal Code, § 938), and possibly in the trial of petty offenses in some municipal courts, a defendant charged with crime is not served with process. He may be arrested on a bench warrant, which in some respects is equivalent to process (Brady v. Davis, 9 Ga. 73); but ]urisdiction of his person is not acquired by the arrest or confinement in prison, but by his presence at the time issue is joined on the indictment. To arraign a prisoner in his absence is legally impossible. Smith v. State, 60 Ga. 432.

It is conceded that a trial of a felony case could not proceed without the defendant having been arraigned or made a valid waiver thereof. But there is nothing in the code which suggests that there is in this respect any difference between trials for felony and trials for misdemeanor. On the contrary it seems to contemplate an arraignment in all cases. Penal Code, § 947. This formality is intended, among other things, to cut off all question as to misnomer, and to identify the person on trial as being the one named in the indictment. Regularly this procedure requires the defendant to stand up, face the court and jury, and listen to the reading of the indictment. In answer to the clerk’s inquiry whether he is guilty or not guilty of the offense charged, he orally makes his plea. This is not a . mere idle ceremony, but furnishes a safe and conclusive means of identification. It permits •the court, on the rendition of a verdict of guilty, to impose sentence and put the identified defendant into execution. To secure this important end it is Therefore tire State’s right to have him present when the trial begins. Besides, this requirement prevents the prosecution from degenerating into the appearance of a mock trial before a moot court, with no one in apparent jeopardy. And while the arraignment may be expressly or tacitly waived (Hudson v. State, 117 Ga. 704), yet the waiver must be an eqirivalent of the thing waived, and be made while present and under such circumstances as will serve the purpose of the law in requiring that formality. The administration of criminal laws should be not only impartial but equal, with privileges to none not accorded to all. If one defendant, or class of defendants, may be tried without being present, so could every other person charged with a misdemeanor. To. allow this privilege to one or to all would be to rob the proceedings of that serious reality which serves a wise and useful purpose. This element of impressiveness was recognized as being so important as to furnish the basis for deciding the analogous question as to whether at common law one convicted of a misdemeanor could be sentenced in his absence. If the punishment had to be by fine only, it was in the discretion of the court whether it should be imposed without the personal attendance of the defendant. But even where the punishment would be pecuniary, it by no means followed that the fine would be imposed in the defendant’s absence. For it was said that if the offense was of a public nature, the person convicted should appear to receive sentence, “ for the sake of example and prevention of the like offenses being committed by other persons; as the notoriety of their being called up to answer criminally to such offenses would .very much conduce to deter others from venturing to commit the like.” Rex v. Hann, 3 Burrows, 1787. Nor is the suggestion in Smith v. State, 60 Ga. 432, a decision to the contrary. The whole gist of the argument there was to show that the defendant was actually present when sentenced, and the case did not involve a ruling as to whether in his absence it could or could not be imposed in a case of misdemeanor. Compare Penal Code, §§ 947, 943; Henry v. McDaniel, 80 Ga. 174; Dennard v. State, 2 Ga. 138; Bryans v. State, 34 Ga. 323. In the present case his bail contracted for the defendant’s presence. This meant actual, and not constructive presence. The obligation was not met by absence; nor by a plea of guilty entered for him by another. As said by the Supreme Court of South Carolina, in State v. Minton, 19 S. C. 283, a case much like the present, there is “no good reason why the court should relax his obligation and make a new contract for him.” See Penal Code, §§ 935, 936.

2. The security insists that the bond required the accused to answer to an indictment for larceny from the person, and that the indictment returned was for simple larceny. The State replies that, under the decision in Lavender v. State, 107 Ga. 707, larceny from the person included the simple larceny with which the defendant was charged, and therefore by the very, terms of his bond he was bound to appear and answer such an indictment. Bail-bonds are often given before the indictment is found, and when it is impossible to know to which of several closely related crimes the particular offense applies. If the greater offense named in the bond includes the smaller offense charged in the indictment, or vice versa, if the smaller offense named in the bond forms an element of the greater offense named in the indictment, or if the two offenses contain a common element, the security will in either case be required to produce the body of his principal to answer the indictment. Larceny was an element both of the offense named in the bond and that charged in the indictment. The bail was bound to produce the body of the defendant. Compare Adams v. State, 22 Ga. 417; Foote v. Gordon, 87 Ga. 279.

Judgment affirmed.

All the Justices concur.