Tandy v. State

Pinket, J. 1. The two adjournments of the trial which were had in the absence of the defendant were at the request of his counsel, and evidently for the reason that the defendant did not choose to appear. After the 5th of November, 1895, to which time the last of such adjournments was had, proceedings on the trial thus commenced were wholly abandoned, because the defendant did not appear. These adjournments were not part of the proceedings that led to his conviction, as the trial upon which he was found guilty was commenced anew from the beginning, before a new jury, after the defendant’s bail had been forfeited and he had been brought into court in the custody of the sheriff. Having prevented the completion of the trial first commenced by his own failure to appear at the time to which it was properly adjourned, he cannot now say that he was deprived of his constitutional right to be present when the two succeeding adjournments occurred, which could have in no way affected or influenced the result of which he complains. The state certainly had a right to put him on trial de novo; and if there was legal impropriety or error in these adjournments, it is entirely clear that they have had no legal influence on, or connection with, the trial upon which he was convicted. 2. It is contended that the pleading of the special plea of former acquittal operated as a withdrawal of the plea of not guilty, and that when the special plea was overruled there was then no issue in the case, and that it was error to proceed with the trial without requiring the defendant to plead de novo. This contention is founded upon a misap [502] prehension. The plea- of not guilty was a general plea in bar; the plea of a former acquittal was a special plea in bar of matter wholly independent of the former general plea, and when it was interposed did not properly or legally displace it. "When it was overruled, the general plea in bar remained, and the issue formed by it remained for trial. 3. The contention that the verdict was fatally uncertain cannot be sustained. During the trial the district attorney elected to proceed against the defendant on the count for embezzlement only, and not upon the count for larceny. This operated as an abandonment and elimination of the count for larceny from the case, for the purposes of that trial at least. The second count was then added by way of amendment, and really became the second count in the case, and the defendant was found “guilty of embezzlement in the manner and form as charged in the second count of the information.” The verdict was sufficiently certain. It was clear that by the second count in the indictment the added count for embezzlement was intended, and it would be an unreasonable and wholly unauthorized inference to hold that the jury intended to convict the defendant of embezzlement on a count for larceny that had been abandoned at the trial. "We do not think there is any reason for supposing that there was any misapprehension on the part of the jury of the nature of the charge for which the defendant was being tried, and of which they in fact convicted him. The verdict must have a reasonable construction, and it would be, as it seems to us, trifling with justice to give it a strained and unreasonable one in order to arrive at the conclusion that it was in the least degree uncertain. 4. As to the question arising out of the amendment of the information during the trial, there is nothing to show that the evidence tending to establish it, br the amendment itself, was objected to. There is no bill of exceptions, and no exception to the ruling allowing the amendment, and, there [503] fore, whether the information was properly amendable or not is not presented by the record, and there can be no reversal upon this alleged ground of error. Hone of the assignments of error can be maintained. By the Qowt.— The judgment of the circuit court is affirmed.