Alston v. State

• Decision Date: 19 June 1925
• Docket Number: 4874.
• Citation: 128 S.E. 791,160 Ga. 509
• Parties: AUSTIN v. STATE.
• Court: Georgia Supreme Court

128 S.E. 791

160 Ga. 509

AUSTIN v. STATE.

No. 4874.

Supreme Court of Georgia

June 19, 1925

Syllabus by the Court.

The illness or absence, from providential cause, of counsel, where there is but one, or of the leading counsel, where there are more than one, shall be a sufficient ground for a continuance (Penal Code, § 990); but a continuance will not be granted for the absence of counsel attending cases pending in another court, except in the Court of Appeals or the Supreme Court. Peters v. Peters, 41 Ga. 242; Cotton States Life Insurance Co. v. Edwards, 74 Ga. 220; Hatcher v. Bowen, 74 Ga. 840; Carroll v. Groover, 27 Ga.App. 747, 110 S.E. 30; Hamrick v. Stewart, 29 Ga.App. 220, 114 S.E. 723.

(a) A motion to continue for absence of counsel must affirmatively disclose that the motion is not made for delay only, and that the movant expects to secure his services at the next term. Wright v. State, 18 Ga. 383 (2); Burnett v. State, 87 Ga. 622, 13 S.E. 552; Wall v. State, 126 Ga. 86, 54 S.E. 815; Curry v. State, 17 Ga.App. 377, 87 S.E. 685.

Under the evidence, voluntary manslaughter was not involved, and the court did not err in failing to charge the law upon that subject.

(a) "Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder." Penal Code, § 65.

(b) In the absence of a written request, the trial judge is not bound to give, in charge to the jury, sections 64 and 65 of the Penal Code, the former defining manslaughter, and the latter defining involuntary manslaughter, where the theory of manslaughter is based solely upon the statement of the defendant. Evans v. State, 151 Ga. 434, 107 S.E. 38.

The verdict is supported by the evidence.

Error from Superior Court, Brantley County; Harry D. Reed, Judge.

Jim Austin, alias Alston, was convicted of murder, and he brings error. Affirmed.

I. J. Bussell, of Waycross, for plaintiff in error.

A. B. Spence, Sol. Gen., of Waycross, and Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HINES, J.

Judgment affirmed.

All the Justices concur, except GILBERT, J., absent for providential cause, and RUSSELL, C.J., dissenting.