A trial court is without jurisdiction to accept a plea of guilty executed by another, and impose sentence in a misdemeanor case, in the absence of the defendant.
DECIDED OCTOBER 29, 1947.
On February 19, 1947, the plaintiff in error presented to the judge of the City Court of Hall County, a motion to set aside and vacate sentence on a purported plea of guilty, which motion in substance alleged as follows: On August 11, 1946, the plaintiff in error was arrested in his home at Chicopee by officers Claud Penson and Lee Elrod and was turned over to Fred Vandiver, jailer of Hall County, who is a deputy of W. A. Crow, Sheriff of said county. On August 16, the plaintiff in error was required to sign two appearance bonds as principal, and was required to deposit $100 cash on one bond, and $36 cash on the other bond. Appended to the latter bond was a form for the listing of certain information for the sheriff's office, indicating that the charge
against the defendant for which this bond was executed to assure his appearance, was that of "fighting." Neither of the cases was called against the defendant at the August term of said court. On November 25, during the November term of said court, the plaintiff in error was in attendance by reason of the charges and bonds hereinbefore referred to, and was placed on trial for the charge of manufacturing homebrew, for which he had executed the $100 bond, and was acquitted. At the time of execution of said bonds by the plaintiff in error, which had been prepared by one Ray Henderson, bookkeeper and turnkey for the Sheriff of Hall County, the plaintiff in error was informed by Ray Henderson that in order for the plaintiff in error to be released from custody it was necessary that he sign said bonds on both front and back. The plaintiff in error observed that the instruments printed on the backs of said bonds, would, upon his execution thereof, authorize in blank anyone to enter pleas of guilty for him for the offenses on which he was being held and for which he was seeking to execute bond. Upon protesting his innocence to Henderson, he was told by him and also by Fred Vandiver, deputy sheriff and jailer, that while it was necessary to sign both the fronts and backs of the bonds in order to obtain his release from custody, yet any plea could be withdrawn by the plaintiff in error at any time. Subsequent to the discharge of the plaintiff in error from custody, the blank on the back of the $36 bond had inserted thereon in different handwriting and in a different colored ink the name "W. A. Crow." On November 18, and at the November term of the City Court of Hall County, and in the absence of the plaintiff in error, a plea of guilty was entered to an accusation against the plaintiff in error charging him with the offense of appearing in an intoxicated condition on U.S. Highway No. 23, said plea being signed "C E Chastain W A C Defendant's Attorney Sam S. Harben Solicitor." The plaintiff in error alleges that W A C means W. A. Crow, Sheriff of Hall County, that he signed the name of plaintiff in error and without his knowledge or consent; that he has not ratified or confirmed the same but on the contrary has requested a trial. The plaintiff in error further alleges that shortly after his acquittal on the charge of manufacturing homebrew, he presented both receipts and requested the refund of the $136 he had filed with the sheriff
as security for his appearance. The $100 put up with the bond for plaintiff in error's appearance on the charge on which he was tried and acquitted, was refunded but the sheriff told the plaintiff in error that at the February term the $36 bond and deposit would be thrashed out. On February 18, W. A. Crow, Sheriff, sent for the plaintiff in error and informed him that his trial, which had previously been set for February 19, would not be held. The plaintiff in error, thereupon, for the first time, learned that a plea of guilty had been entered against him for the offense of appearing in an intoxicated condition on U.S. Highway No. 23 and that he had been fined the $36 which he had previously deposited, for this offense. He contends that no legal judgment of sentence has been pronounced on him because he has never waived arraignment and because he has never been officially informed by the court of the sentence to be entered against him and he was not present when the purported plea was signed or the purported sentence entered. He contends that said purported authorization was not strictly complied with, in that said purported plea was not signed at the "next term of the within State court," as provided in said purported authority; also that the purported authority was for the charge of "fighting" and not otherwise. The plaintiff in error prays that said purported plea be withdrawn, the sentence vacated and that he be given a fair and impartial trial on the charges set out in the accusation. On February 22, 1947, C. E. Smith, Solicitor of the City Court of Hall County, filed a demurrer to the motion of the plaintiff in error on grounds substantially as follows: that said motion shows on its face that it is in effect a motion for new trial filed too late; that even if the same is construed as a motion to set aside a judgment, said judgment is valid on its face, and said motion is brought after the close of the term at which said judgment was rendered; said motion affirmatively shows on its face a course of conduct on the part of movant amounting to an estoppel. On May 24, the sustaining the demurrer and dismissing the motion, and on this judgment error is assigned.
The sole question for determination in this case is whether or not the trial court can legally sentence a defendant in a misdemeanor case, in his absence, he having previously, in writing, authorized another to enter a plea of guilty for him, and to apply bond money posted by him as a fine in the case. The motion to set aside and vacate the sentence of the court discloses some grounds tending to raise questions other than as above outlined, such as at the time of the signing of the purported authorization the charge was "fighting," while the plea entered thereunder was for public drunkenness; that the purported authority was to enter the plea at the next term (August term) and the plea was not entered until the November term; that the purported authority was in blank, and the name W. A. Crow was later supplied, etc., but a decision of the question above outlined will be controlling, and these other questions are held to be without relevancy or materiality.
On the question of the power of a court to accept a plea of guilty to be signed by one with authority in the absence of the defendant, see Wells v. Terrell, 121 Ga. 368
(49 S.E. 319). In that case the attorney for Wells offered to waive the presence of his client, and, having authority to do so, offered to enter a plea of guilty, and to allow the court to impose a sentence on the defendant. The defendant was charged with a misdemeanor; he was under $500 bond; his case was called and this offer made by his counsel, the defendant being absent. The State insisted upon forfeiting the bond. In holding that as one of the purposes of arraignment is to identify the person on trial and raise an issue by plea, it is legally impossible to arraign the defendant, accept his waiver or receive a plea in his absence, the court in the decision, written by Mr. Justice Lamar, said in part as follows: "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 the 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, 45 S.E. 66), yet the waiver must be an equivalent 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 inSmith 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."
The trial court was therefore without jurisdiction to accept the plea and impose sentence in the absence of Chastain, and the sentence is a nullity and must be set aside. The court erred in sustaining the demurrer interposed to the motion to set aside the sentence.
Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.