Hall v. State , 103 Ga. 403 ( 1898 )

Lewis, J.

T. B. Hall by special presentment was charged with the unlawful sale of spirituous liquors in Elbert county on December 25, 1895. He was tried in the city court of Elberton, and found guilty. The only evidence in the case was the testimony of one witness who swore positively that he had bought of the accused a quart of whisky for forty cents, at the house of the accused in Elbert county, some time during the month of December, 1895. Upon arraignment the accused pleaded not guilty. During the cross-examination by counsel for the accused of the State’s witness pending the trial of the case upon the plea of not guilty, it was offered by said counsel to prove by the witness that the offense for which the accused was then on trial was the same to which he had previously pleaded guilty in the city court of Elberton. Upon objection by State’s counsel, the court refused to admit this testimony. Counsel for accused then offered to file a plea of former conviction, which, upon objection by State’s counsel, was likewise refused by the court. After conviction a motion for a new trial, alleging the above rulings of the court as error, was made, which motion was overruled, and the accused excepted.

The plea of former conviction is a plea in bar. Section §50 of the Penal Code provides as follows: “If the prisoner, upon being arraigned, shall demur to the indictment, or plead to the jurisdiction of the court, or in abatement, or any special plea in bar, the demurrer or plea shall be made in writing; and if such demurrer or plea shall be decided against the prisoner, he may, nevertheless, plead and rely on the general issue of “not guilty.” This statute obviously contemplates that the plea insisted upon this" case should have been filed in writing upon arraignment, and before pleading to the merits. In the case of Hill v. State, 41 Ga. 484, it was held: “ Under the code of this State, all exceptions to the indictment, or for matters that may arise by special demurrer, or by plea in abatement or in bar, must be made in writing preliminary to the trial, and if not made at the proper time, are to be held as-waived in contemplation of law.” It was insisted by counsel for plaintiff in error that the failure to file this plea in time was through the inadvertence of the attorneys for the accused,, and as it involved an important legal right of their client, under the circumstances the court should have permitted the plea to have been entered at the time it was offered, and should have submitted evidence thereon to the jury. The statute and the construction given it by this c&urt is imperative; and if any substantial rights of the plaintiff in error have been lost in consequence of any omission of his attorneys, his remedy, if any, will have to be found in an appeal to some other branch: of the government than the judiciary whose duty it is to expound and enforce the law.

Judgment affirmed.

All the Justices concurring.