Bower v. State

• Decision Date: 22 April 1944
• Docket Number: 30452.
• Parties: BOWER v. STATE.
• Court: Georgia Court of Appeals

29 S.E.2d 925

71 Ga.App. 45

BOWER v. STATE.

No. 30452.

Court of Appeals of Georgia, Division No. 1.

April 22, 1944

Rubye G. Jackson, of Atlanta, and Geo. H. Carswell, of Irwinton for plaintiff in error.

C S. Baldwin, Jr., Sol. Gen., of Milledgeville, for defendant in error.

GARDNER Judge.

The defendant was charged with assault with intent to murder and convicted of that offense. He filed his amended motion for new trial, which was overruled, and he excepted to this judgment. The State's evidence showed an unprovoked serious shooting of the victim with a shotgun, maiming the victim for life. The defendant contended that the shooting was accidental. So far as the general grounds are concerned the defendant is without doubt guilty. On the call of the case the court appointed counsel for the defendant, who made a motion for continuance on several grounds. We commend counsel for his able services in the trial, as well as the able manner in which he has presented his case here for review. We are of the opinion that manifestly the court did not abuse its discretion in overruling the motion for new trial on any of the grounds. Under the record, we think that the trial judge was very clearly justified in overruling the motion. For this reason we rest our affirmance of the case on the judgment of the trial court in overruling the motion for new trial. That judgment, as shown by the record, is as follows:

"As to the general grounds, it may be said that the defendant predicated his defense upon the theory of accident while the State contended that the defendant, with malice and with the intent to kill, shot Louvenia Whipple as set forth in the indictment. The cause appears traceable to the defendant's resentment over objections voiced by Louvenia concerning his relationship with her mother, Gertrude Knight. The jury, having opportunity to observe the prosecuting witness, and the severity of the wound inflicted upon her, as well as hearing the statement of the defendant, believed the defendant guilty under the law and the evidence, and by their verdict so found.

The amended motion, containing three grounds, will be considered together. The allegations are similar, and set forth the following contentions: (1) That the court erred in failing to grant a continuance in order to enable the defendant to have certain witnesses brought into court; (2) that the court erred in failing to grant a continuance in order to allow the defendant time to procure counsel of his own choosing; and (3) that the court erred in failing to grant a continuance in order to enable appointed counsel to properly prepare the case for trial. The averments set forth in the three special grounds, while factual in nature, are understood as being merely contentions, and are to be considered in the light of the record.

Upon the call of the case, upon inquiry by the court, the defendant stated that he did not have counsel, and thereupon George H. Carswell, Esq., of the Irwinton bar, was appointed to represent him. Motions for continuance were made, but were not reported. Attached to the record is a stipulation between counsel for the State and the defendant as to what transpired, in the main, during the hearing of these motions. To this stipulation the court has attached a copy of the bond introduced in evidence by the State. As stated in the stipulation, about thirty minutes after his appointment, counsel for the defendant moved a continuance of the case in order to procure the attendance of certain witnesses who were not present, and who had not been subpoenaed. The court directed the solicitor-general to proceed with the trial of another case and officers were sent for the witnesses desired by the defendant. Upon the conclusion of the substituted case, the case against the defendant was again sounded, and the defendant again moved a continuance. During the

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