Opinion
33306.
DECIDED DECEMBER 5, 1950.
Attempt to commit burglary; from Washington Superior Court — Judge Humphrey. May 8, 1950.
J. D. Godfrey, Casey Thigpen, Newell J. Smith, for plaintiffs in error.
W. H. Lanier, Solicitor-General, contra.
Where a defendant goes on trial without formal arraignment and plea and where he or his counsel fails to file a written waiver of arraignment and enter a written plea, these defects will not vitiate the judgment where the point was not made until after the verdict was rendered and the judgment based thereon was entered.
DECIDED DECEMBER 5, 1950.
Raymond Sellers and Henry Sellers were tried and convicted in the Superior Court of Washington County for the offense of attempted burglary. When the case was previously before this court, the judgment of the trial court overruling the motion for a new trial was affirmed. (See Sellers v. State, 81 Ga. App. 212 ( 58 S.E.2d 262). After the judgment of affirmance, the defendants filed a motion to set aside the judgment on the ground that the record showed on its face that the defendants were not formally arraigned, nor arraigned in any manner, and did not waive arraignment; that the defects appear on the face of the record and are not amendable, and that in consequence thereof the defendants have been denied due process of law as provided by the Constitution. The bill of exceptions in this case has attached to it as exhibits the petition to set aside, the indictment, including all entries thereon, the verdict and judgment, and the response of the solicitor-general, which response set out a copy of the bill of exceptions of the defendant in his former appeal to this court from the overruling of his motion for a new trial, which first bill of exceptions contained the following statement: "Be it remembered that at said term of court, and on Sept. 7, 1949, with Honorable Robert Henry Humphrey, judge thereof, then and there presiding, said cause, as aforesaid, came on for trial; defendants waived being formally arraigned and pleaded not guilty to charge in indictment." The bill of exceptions in this case recites that all these papers were introduced in evidence on the hearing, at the conclusion of which the trial court overruled the motion to set aside the judgment. The only evidence as to arraignment was the following notation on the back of the accusation: "The defendant, Henry Sellers, Raymond Sellers, Pete Sellers, waives copy of indictments and list of witnesses, also waives being formally arraigned and pleads not guilty.
W. H. Lanier, Solicitor-General ___________________________________
Defendant's Attorney, Sept. 7, 1949"
The bill of exceptions in this case was directed to the Supreme Court, and was by it transferred to this court ( 207 Ga. 249,
61 S.E.2d, 145), it being there held that the case involved a mere application of unquestioned and unambiguous provisions of the Constitution to a given state of facts, for which reason this court, and not the Supreme Court, had jurisdiction of the subject-matter.
It is the contention of the State that the defendant, having in his first bill of exceptions recited that he waived formal arraignment and pleaded not guilty, would now be estopped from complaining that the signature of his attorney did not appear on the waiver and plea, and from contending that he did not in fact waive arraignment. A motion to set aside a judgment must be based upon a defect not amendable which appears on the face of the record or pleadings. (Code, § 110-702). It is not necessary to determine whether or not the admission in the first bill of exceptions might be considered for the purpose of deciding if the defendants did, in actuality, waive arraignment (in which case the defect could be cured by a nunc pro tunc order recording the arraignment and plea under the provisions of Code § 27-1406), or if it might be considered as such an admission as would estop the defendants from later contending that they did not in fact enter a plea and were not in fact arraigned, because, even if the admission in the bill of exceptions is not considered at all, it does not appear that the trial court erred in overruling the motion.
The law of this State is well settled that a defendant may waive arraignment and plea by failure to call the attention of the court to this defect in the proceedings at the proper time, and when it does not appear that he made any mention of the fact until after verdict he is conclusively presumed to have done so. Bryans v. State, 34 Ga. 323; Reddick v. State, 149 Ga. 822 ( 102 S.E. 347); Reddick v. State, 24 Ga. App. 776 ( 102 S.E. 132); Hudson v. State, 117 Ga. 704 ( 45 S.E. 66); Gravitt v. State, 53 Ga. App. 353 ( 185 S.E. 594); Brown v. State, 19 Ga. App. 619 ( 91 S.E. 939); Theis v. State, 45 Ga. App. 364 (2) ( 164 S.E. 456); Lewis v. State, 55 Ga. App. 743 ( 191 S.E. 278).
It does not appear from the record in this case that the point was raised until after the verdict of guilty in the trial court had been affirmed by this court. The record here discloses that the question was first raised by the filing of the motion to set aside the judgment which was filed some time after the verdict and judgment were rendered. Therefore, the defendant is conclusively presumed to have waived arraignment and plea, and consequently these defects were cured by the verdict in the case. Code § 110-705 provides as follows: "A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form." It follows, therefore, that this defect is not subject to attack by a motion to set aside the verdict in this case.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.