Butts v. State, 18654
| Decision Date | 13 September 1954 |
| Docket Number | No. 18654,18654 |
| Parties | William BUTTS v. The STATE. |
| Court | Georgia Supreme Court |
William Butts was tried for rape, and the jury found him 'guilty, with recommendation of mercy, with sentence to run no more than fifteen years--no less than fifteen years.' The defendant's amended motion for new trial was denied, and he excepted. In the bill of exceptions and in the amended motion for new trial error is assigned because the trial court denied an oral motion for a continuance, and a written motion to quash the indictment.
On December 26, 1953, a warrant issued, charging that defendant with the offense of assault with intent to rape. The defendant was arrested two days prior to the issuance of the warrant and, being unable to give bond, remained in jail. Upon the convening of the superior court on March 15, 1954, the court was advised that the accused desired counsel, and appointed a named attorney to represent him. On March 16 the grand jury returned an indictment charging the accused with the offense of rape. On March 17 on motion of counsel for defendant, the court quashed the indictment. On the same day the grand jury returned another indictment, in identical language with the prior one, with the exception that a challenged member of the grand jury had been excused and the disqualified grand juror's name did not appear in the second indictment. On the same day the case was called for trial, and defendant's counsel made an oral motion for a continuance, to allow him an opportunity to study the new indictment and prepare any defenses he felt proper to the new indictment. The court denied this motion, and defendant's counsel then made a written motion to quash the second indictment, which was denied, and the case proceeded to trial.
Peter J. Rice, Eatonton, for plaintiff in error.
George D. Lawrence, Sol. Gen., Eatonton, Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., for defendant in error.
Syllabus Opinion by the Court.
1. The granting of a motion for continuance is within the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion. Code, § 81-1419; Cannady v. State, 190 Ga. 227, 9 S.E.2d 241; Porch v. State, 207 Ga. 645(1), 63 S.E.2d 902; Blackston v. State, 209 Ga. 160(2), 71 S.E.2d 221.
(a) Where the crime was committed in December, 1953, the defendant was arrested during the month, remained in jail until court convened on Monday March 15, 1954, on which day the court appointed counsel to represent him, the indictment was returned on Tuesday the 16th, and the case called for trial on Wednesday the 17th, when the indictment was quashed on the ground that one of the members of the grand jury was disqualified, another indictment identical with the first except for the name of the disqualified juror was returned the same day, and the case was called for trial during the call of cases on the 17th, the trial judge did not abuse his discretion in denying the defendant's motion for a continuance in order that he might study the new indictment and prepare any defenses he felt proper to the new indictment.
2. The office of a grand juror is not 'a county office' within the meaning of the statute, Ga.L.1913, p. 125, § 4; Code, § 92-6907, which provides that a member of a board of county tax assessors...
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