Opinion
41652, 41653. 41654.
SUBMITTED NOVEMBER 2, 1965.
DECIDED NOVEMBER 10, 1965.
Larceny, etc. Meriwether Superior Court. Before Judge Knight.
James E. Weldon, Ben R. Freeman, for appellants.
Wright Lipford, Solicitor General, for appellee.
1. Unless an indictment is absolutely void any defect therein must be objected to before conviction and a motion in arrest of judgment will not lie.
2. Only defects appearing upon the face of the record may be taken advantage of by a motion in arrest of judgment.
SUBMITTED NOVEMBER 2, 1965 — DECIDED NOVEMBER 10, 1965.
On May 24, 1965, the defendant George Parham pled guilty to two charges of simple larceny and on the same date Homer Hudson pled guilty to one charge of simple larceny. Parham and Hudson were both charged with the larceny of "fifteen gallons of regular standard gasoline of the personal goods of Joe Jones of the value of four and 05/100 dollars," on the ____ day of ____in the year 19__, and in a separate indictment Parham was charged with the larceny of "one 1965 automobile tag number 42-J 99 of the personal goods of, H. C. Martin and Vernon Phillips, d/b/a Harris Motors Used Cars, of the value of ten dollars" on a given date. Thereafter, motions for new trial were filed but later dismissed, and no exception taken to such judgments. During the same term of court in which the pleas were taken the defendants filed motions to arrest the judgment of conviction on the grounds that the indictments were fatally defective due to the description of the property allegedly stolen, and because the "indictment showed that the defendant was not represented by an attorney, and he was not offered an attorney, which is illegal under the law of the State of Georgia, and violated the constitutional rights of the defendant."
1. "While a defendant is entitled to be tried upon a perfect indictment or accusation, such right may be waived by failure to object until after conviction, and unless the accusation or indictment is so defective as to be absolutely void a motion in arrest of judgment, made after verdict, will not lie. Lanier v. State, 5 Ga. App. 472 ( 63 S.E. 536); Gravitt v. State, 36 Ga. App. 301 ( 136 S.E. 829)." Davis v. State, 106 Ga. App. 133 (1) ( 126 S.E.2d 486). The failure of the indictment to allege the correct date of the alleged larceny would make it subject to demurrer ( Bailey v. State, 65 Ga. 410), but where no demurrer is filed and the case is tried, or plea is entered, such failure to allege the date of the alleged larceny will not subject the judgment to a motion in arrest. See Adkins v. State, 103 Ga. 5 ( 29 S.E. 432); Draper v. State, 6 Ga. App. 12, 15 ( 64 S.E. 117).
Accordingly, the indictments against Parham and Hudson were not subject to the motion in arrest for failure to allege the date of the alleged larceny, nor were the other alleged defects in the indictments (dealing with descriptions of the property allegedly stolen), such as to support a motion to arrest the judgment. The description was not so defective as to make the indictments absolutely void and the failure to demur to such allegations before pleading constituted a waiver of such defects.
2. The remaining ground of each motion in arrest is as follows: "That said indictments show that the defendant was not represented by an attorney, and he was not offered an attorney, which is illegal under the law of the State of Georgia and violated the constitutional rights of the defendant."
Assuming, but not deciding, that the defendants were not represented by an attorney, and that the signature of the defendant waiving arraignment, and pleading guilty makes such fact apparent from the face of the record, it does not appear from the face of the record that the defendants were indigent, that they did not intelligently waive counsel, or that they were not offered counsel, or the opportunity of obtaining counsel if not indigent.
Accordingly, to establish the fact of whether the defendants' constitutional rights were violated would require a hearing of evidence, which procedure is not provided for in determining the merits of a motion in arrest of judgment to determine what actually transpired on the trial of the cases. Under the decision of the Supreme Court in Pippin v. State, 172 Ga. 224 ( 157 S.E. 185), the trial court did not err in overruling the motions in arrest of judgment since nothing appears on the "face of the record" that would invalidate in any way the judgments in such cases.
Judgments affirmed. Eberhardt and Pannell, JJ., concur.