1. "One who has filed a plea of guilty in a criminal case can not move for a new trial. Where one accused of crime voluntarily pleads guilty to the charge, a new trial can not be granted; for there was no verdict. A plea of guilty may, as a matter of right, be withdrawn before sentence; and after sentence the judge may permit it to be withdrawn upon meritorious grounds, addressed to his discretion; but neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty." Bearden v. State, 13 Ga. App. 264 ( 79 S.E. 79).
2. Where the defendant, with full knowledge of the charge against him and of his rights and of the consequences of a plea of guilty, entered such a plea understandingly and without fear or persuasion, and his counsel had not requested or obtained a leave of absence from the court, and at the time the defendant was sentenced he did not suggest to the court that he wished his counsel present, even though his counsel might have previously requested the solicitor-general to notify him thereof, and although the solicitor-general, who had not agreed to the request, overlooked it and failed to notify defendant's counsel, the court did not violate any of the defendant's statutory rights under the Code, § 27-1404, in proceeding to sentence him under his plea of guilty, in the absence of his counsel. The constitutional questions in the case were evidently not properly raised, since the Supreme Court transferred the case to this court.
"The specific office of a motion for a new trial is to procure the setting aside of the verdict which has been returned against the complaining party." Register v. State, 12 Ga. App. 1, 6 (76 S.E. 649). "A fact which has transpired since verdict is not ground for a new trial." Denny v. Broadway National Bank, 118 Ga. 221 (44 S.E. 982). "The word `trial,' as used in Civil Code, § 5484, which prescribes the time in which motions for new trials shall be filed, is used in its restricted sense, meaning an examination of the matter of fact in issue, and hence such trial ends with the verdict in the case." Castellaw v. Blanchard, 106 Ga. 97 (3) (31 S.E. 801);Buchanan v. James, 134 Ga. 475 (68 S.E. 72). See 54 A.L.R. 1220, 1222. The Court of Appeals took this view of it, when the question was presented in 1913: "One who has filed a plea of guilty in a criminal case can not move for a new trial. Where one accused of crime voluntarily pleads guilty to the charge, a new trial can not be granted; for there was no verdict. A plea of guilty may, as a matter of right, be withdrawn before sentence; and after sentence the judge may permit it to be withdrawn upon meritorious grounds, addressed to his discretion; but neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty." Bearden v. State,13 Ga. App. 264 (supra). "As the prisoner may waive even a trial itself, and be capitally punished upon his own confession of guilt, he may waive every minor right or privilege. The greater includes the less, or the whole the parts." Sarah v. State, 28 Ga. 576 (2); McCarty v. Hopkins, 61 Neb. 550 (85 N.W. 541). The defendant having pleaded guilty in the instant case, he could not move for a new trial, but might have made a motion to withdraw his plea of guilty. Bearden v.State, 13 Ga. App. 264 (79 S.E. 79).
"A judicial confession is a plea of guilty made by an accused in a fit state of mind to plead before a court competent to try the pending charge in which the proceedings have been regularly instituted, and which, upon entry of that plea, is competent to enter judgment and affix the penalty. Such a confession is conclusive as to guilt in fact of the offense charged." 2 Wharton's Crim. Ev. (11th ed.) 965, § 586. "Like any other confession, it must be shown to *Page 280 have been voluntary, that is, that it was uninfluenced by any improper inducement, and that it was not the result of a misunderstanding. The conclusiveness of the plea is based upon its free and voluntary character, arising from a consciousness of guilt, but where it is entered from any other motive courts should allow it to be withdrawn on request, and a plea of not guilty substituted in its place. Thus, where the accused enters a plea to the wrong indictment; or is a foreigner, unacquainted with judicial proceedings; or where the accused believed, from a remark of the judge, that he would receive the minimum sentence; or where there is a doubt as to the sanity of the accused; or where he pleads under fear and intimidation, a refusal to allow the plea to be withdrawn is a reversible error." Id. 974, § 587. See Davis v. State, 20 Ga. 674. "It must not be induced by fear, by misrepresentation, by persuasion, or by the holding out of false hopes, nor be made through inadvertence or by ignorance." 16 C. J. 401, § 737. "A plea of guilty, being but a confession of guilt in open court, ought to be received with care and scanned with caution. It ought never to be received unless freely and voluntarily made; and if entered under a misapprehension as to its legal effect or the consequences which are to follow, honestly entertained because of representations made or inducements held out either by the court or by counsel for the State, the prisoner ought to be allowed to withdraw the plea, even after sentence, if he moves promptly upon discovering that he has been misled." Griffin v. State,12 Ga. App. 615 (6) (77 S.E. 1080). "On the other hand, if a defendant, with full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, enters such a plea understandingly and without fear or persuasion, the court, may, without abusing its discretion, refuse to permit him to withdraw it." 14 Am. Jur. 962, § 287. However, our Code, § 27-1404, provides in part that where a plea of guilty has been entered by the defendant "at any time before judgment is pronounced, the prisoner may withdraw the plea of `guilty,' and plead `not guilty,' and such former plea shall not be given in evidence against him on his trial." In Foster v. State, 22 Ga. App. 109 (2) (95 S.E. 529), it was decided that "the defendant in his motion to vacate did not set up that the judge, the solicitor, or any other court officer misled him or induced him to plead guilty, or made any promise in regard thereto," and the judge did not *Page 281 err in refusing to allow the plea of guilty to be withdrawn after sentence. See Sanders v. State, 59 Ga. App. 748 (2 S.E.2d, 144).
In the instant case the defendant does not contend that before the entering of the plea of guilty any one misled him or induced him to plead guilty, or made any promise in regard thereto. Where, after the plea of guilty was entered, the defendant's counsel merely requested the solicitor-general to notify him when the judge would sentence the defendant, to which request it does not affirmatively appear that the solicitor-general acceded (and certainly it is not shown that he promised and agreed so to do), the overlooking by the solicitor-general of such a request and his failure to comply with it, and the further facts that counsel had not sought or obtained any leave of absence from the court, and that the defendant, although present when he was sentenced, did not even suggest to the court that he wished his counsel also present, would not be a ground which would require the judge to vacate the sentence because of the absence of the defendant's counsel at the time the court passed sentence upon him. Crawford v.Crawford, 139 Ga. 68 (76 S.E. 564); Cauthen v.Barnesville Savings Bank, 69 Ga. 767 (2); Screven v.State, 169 Ga. 384 (5) (150 S.E. 558). Even if the motion made by the defendant in this case had been one to withdraw the plea of guilty, we do not think it would have been an abuse of discretion for the judge to refuse to sustain the motion and allow the defendant to withdraw the plea. Gatlin v. State, 17 Ga. App. 406 (87 S.E. 151).
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.