Carnes v. State, 42495

• Decision Date: 24 February 1967
• Docket Number: No. 42495,No. 2,42495,2
• Citation: 154 S.E.2d 781,115 Ga.App. 387
• Parties: Ralph CARNES v. The STATE
• Court: Georgia Court of Appeals

Page 781

154 S.E.2d 781

115 Ga.App. 387

Ralph CARNES v. The STATE.

No. 42495.

Court of Appeals of Georgia, Division No. 2.

Feb. 24, 1967.

Rehearing Denied March 14, 1967.

Certiorari Denied May 48 1967.

Syllabus by the Court

1. Under the facts and circumstances of this case the trial judge did not err in denying the defendant's motion for a continuance of the trial.

2. The indictment sufficiently alleged that the principal offender was unknown to the grand jury. The trial was authorized by Code § 26-2621.

3, 4. The court did not err in admitting the state's exhibits or the statement discussed in these divisions of the opinion.

5. The objections to the judge's charge were not properly taken under the Appellate Procedure Act of 1965 as amended.

6. The trial court did not err in failing to give in his instructions to the jury the written requests of the defendant since the substance of the requests was included in the charge.

7. The court did not err in admitting the oral and photographic evidence considered in this division of the opinion.

The defendant was indicted and convicted of the offense of receiving stolen goods. The indictment was essentially in the language of Code § 26-2621 and alleged that the defendant had received stolen goods from some person or persons to the grand jurors unknown. The defendant employed counsel on March 12, 1966, and was placed on trial on March 15, 1966.

Error is enumerated on the trial judge's denial of the defendant's motion for a continuance of the trial and on numerous other grounds.

Tisinger & Tisinger, David H. Tisinger, Carrollton, for appellant.

Wright Lipford, Sol. Gen., Newnan, for appellee.

BELL, Presiding Judge.

1. Error is enumerated on the failure of the trial judge to grant the defendant's oral motion for a continuance of the trial. The substance of the motion was that counsel had not had sufficient time to investigate and prepare the defense. No evidence, only argument of counsel, was offered at the hearing. Thus to a large degree the motion amounted to nothing more than contentions of counsel based on unsupported suppositions and conclusions. To that extent the motion is defective. 'The bare statement in the motion to continue, that appointed counsel had not had sufficient time to investigate and prepare the defense, was a mere conclusion. Questions of this nature must of necessity be entrusted to the discretion of the trial judge'. Smith v. State, 198 Ga. 849, 852-853, 33 S.E.2d 338, 340.

The record does reveal that the time of counsel's preparation for trial was short. Mere shortness of time, however, does not ipso facto show a denial of the rights of an accused. Something more is required. 'An examination of the decisions of this court will demonstrate that the broad discretion given to the presiding judge in granting or refusing to continue trials is not to be disturbed unless manifestly abused. * * * Whether or not a reversal is to be adjudged because counsel were not allowed sufficient time to prepare the case for trial is to be determined by the particular facts and circumstances of each case.' Cannady v. State, 190 Ga. 227, 228-229, 9 S.E.2d 241, 242. It appears from the cases that the courts have considered these 'facts and circumstances' to embrace not merely those attendant at the hearing on the motion but also those which the entire record discloses. While no precise rule emerges from the numerous decisions, it is apparent that it is only where the record reveals to the appellate courts facts or circumstances showing as a matter of law identifiable prejudice to the accused, such as where events have moved so swiftly that constitutional guaranties are overridden, that the reviewing courts are authorized to reverse the trial court's refusal to grant an extension. See Fair v. Balkcom, 216 Ga. 721, 119 S.E.2d 691. The record here contains no evidentiary facts showing identifiable prejudice or recital of official events tending to suggest an abridgement of the defendant's constitutional rights. In that status the trial judge's discretion must not be disturbed. Enumerations 5, 6, 7 and 10 have no merit.

2. The defendant argues that the time of his trial and consequently his conviction was improper since the principal thief was known at the time of trial. It is, of course, true that '(o)ne charged with buying or receiving goods, knowing them to have been stolen, cannot be indicted and punished until after the conviction of the principal offender, or until it appears that the principal offender cannot be taken, so as to be prosecuted and convicted.' Smiley v. State, 23 Ga.App. 317, 98 S.E. 125. However, the record here shows no knowledge on the part of anyone as to the identity of the principal. The indictment itself, couched in the language of Code § 26-2621, reads in part that the defendant did 'buy and receive from some person or persons to the grand jurors unknown so that the said person or persons might be taken and prosecuted to conviction * * * the said property herein described having been feloniously stolen by some party to the grand jurors unknown * * *.' In the light of this language the presumption is that the grand jury and the prosecutor properly performed their duty and did know or discover the identity of the principal. Further, all witnesses interrogated on the point testified that they did not know the identity of the principal. The testimony of the sheriff, based as it was on hearsay revealed to him after the indictment, that an unnamed person whose whereabouts was unknown to him, was suspected of being a principal, had no probative value and did not render the time of trial improper. Enumerations 1, 4 and 11 have no merit.

3. Enumerations 3, 8, 14, 16, 17 and 24 all assert error on the court's admitting in evidence certain exhibits offered by the State listing the merchandise stolen and containing a statement signed by the defendant as follows: 'This is to certify that all the merchandise on the invoice was stolen from Alterman Foods and purchased by me.' The objection is that the statement, being tantamount to a confession, was allowed in evidence without any showing that it was made voluntarily and without being induced by the slightest hope of benefit or remotest fear of injury. These enumerations have no merit.

In response to questions asked by the solicitor, Sheriff Potts testified that at no time had he promised immunity to the defendant nor had he conversed with anyone regarding any contact with the solicitor. Further, Sheriff Potts testified that while he (the sheriff) was in the defendant's store in an adjoining county and while waiting for officials of that county to arrive, he told the defendant he was investigating incidents regarding a truck 'stolen in Atlanta' but that he (the sheriff) was 'on the wrong side of the river' and 'I got nothing to do with it over here. I'm just waiting here.' The sheriff then testified that the defendant had said 'I wished I'd let that stuff alone. I don't want to get into any trouble. I knew I shouldn't have bought it. I can swear I wished I had left there and went to the ball game. I bet I don't ever buy anything else.' On cross examination, Sheriff Potts was asked, 'Mr. Carnes co-operated throughout this thing and didn't try to hide anything from you?' and testified '* * * I told him (defendant) why I was waiting there. He hesitated, not a long time, but a short time, and then that's the statement he made to me.' Another witness, Hunt, a representative of the owner of the stolen property, on cross examination was asked 'Did he (defendant) at anytime try to hide any of this thing, or was he fairly open about it, or tell you all about it?' Answering, Hunt testified, 'He (defendant) said, 'I want to right a wrong that I did.' He said, 'I don't know why I done it. " Hunt, on cross examination, questioned if he had led the defendant to believe no prosecution of defendant would occur if defendant assisted 'in this thing,' testified 'No, sir.' Also on cross examination, Hunt testified that the defendant openly and without hesitation helped inventory all 'the stuff' in defendant's store and that defendant himself suggested that it would be better if he (defendant) would 'just go ahead and pay for it.' Previously, on direct examination the witness Hunt had identified the merchandise listed in the exhibits as stolen property and testified that he (Hunt) witnessed the defendant's signature to the statement.

Significantly, all of the foregoing testimony either was admitted without objection or was adduced on cross examination. Of importance is the fact that the circumstances surrounding the making of these oral statements by the defendant as well as his signing of the written one, as gleaned from the testimony of Hunt and Sheriff Potts as well as from the unsworn statement of the defendant himself, show that the defendant was not in custody, was in no manner restrained, and was not subjected to official interrogation.

It is thus to be seen not only that a proper foundation was laid for the introduction of the exhibits, but also that substantially the same evidence in the form of oral testimony was admitted without objection, or on cross examination, and for that reason, even if the admission of the exhibits otherwise would have been improper, under the facts...