Curry v. State

• Decision Date: 20 November 1915
• Docket Number: 6691.
• Citation: 87 S.E. 685,17 Ga.App. 377
• Parties: CURRY ET AL. v. STATE.
• Court: Georgia Court of Appeals

87 S.E. 685

17 Ga.App. 377

CURRY ET AL. v. STATE.

No. 6691.

Court of Appeals of Georgia

November 20, 1915

Rehearing Denied Jan. 7, 1916.

Syllabus by the Court.

All applications for continuances are addressed to the sound legal discretion of the court (Pen. Code 1910, § 992), and the abuse of this discretion must be plain, palpable, and flagrant before the lower court will be reversed. Sealy v. State, 1 Ga. 213, 44 Am.Dec. 641; Howell v State, 5 Ga. 48; Roberts v. State, 14 Ga. 6; Revel v. State, 26 Ga. 276; Long v. State, 38 Ga. 491; Oglesby v. State, 121 Ga. 602, 49 S.E 706; Rawlins v. State, 124 Ga. 31, 52 S.E. 1; Lyles v. State, 130 Ga. 294, 60 S.E. 578; Parker v. State, 3 Ga.App. 336, 59 S.E. 823.

Continuances for the absence of counsel are not favored. A strict showing is required, particularly where competent counsel (other than the absent counsel) has been secured, and it is not shown that the defendant was injured by the absence of his original counsel. Allen v. State, 10 Ga. 85; Horshaw v Cook, 16 Ga. 526; Wright v. State, 18 Ga. 383; Loyd v. State, 45 Ga. 57, 72; Long v. State, 38 Ga. 491; Poppell v. State, 71 Ga. 276.

Where a motion for a continuance was based upon the ground that the attorney who represented the accused was physically unable to appear, and it was shown that he had been employed by the accused with knowledge of his physical indisposition, the discretion of the trial judge will not be controlled. Easterling v. State, 12 Ga.App. 690, 78 S.E. 140 (1). In this case the physical indisposition of the counsel was caused by a broken leg, which was broken several weeks before he was employed by the accused, and he was using crutches when so employed, and his physical condition was apparent at that time to the accused, or could have been discovered by the slightest diligence. Under such a state of facts the trial judge did not abuse his discretion in overruling the motion for a continuance.

There was no error (as assigned in the second ground of the amendment to the motion for a new trial) in the admission of the testimony showing a free and voluntary confession of the defendant Curry.

In the light of the explanatory notes of the trial judge, there is no merit in the fourth and fifth grounds of the amendment to the motion for a new trial.

There was no error in the refusal of the court to grant the counsel for the defendants two hours for the argument of this case. This was a felony case, but the offense charged was not a capital felony, and, under the law, the two defendants having elected to be tried together, their counsel were entitled to only one hour for the argument of their side of the case, and the grant of any further time was entirely within the discretion of the trial judge.

The court did not err "in declining to charge, on written request of counsel in said case, section 1009 of the Penal Code of the state of Georgia." The court had the right to assume that this request referred to section 1009 of the last-adopted Penal Code of Georgia (1910), and that section was not applicable to the facts of the case.

Those assignments of error on different excerpts from the charge of the court which are referred to in the brief of counsel for plaintiff in error are without substantial merit. The instructions complained of in various grounds of the amendment to the motion for a new trial are not erroneous for any of the reasons assigned therein. The other special assignments of error are either entirely without merit or are not referred to in the brief of counsel for the plaintiffs in error.

The evidence authorized the conviction of both defendants, and the court did not err in overruling the motion for a new trial.

Error from Superior Court, Berrien County; W. E. Thomas, Judge.

Virge Curry and others were convicted of crime, and bring error. Affirmed.

Russell, C.J., dissenting.

John R. Cooper, of Macon, and Wm. Story and J. C. Smith, both of Nashville, for plaintiffs in error.

J. A. Wilkes, Sol. Gen., of Moultrie, for the State.

BROYLES J.

The sixth headnote alone needs elaboration. It is insisted by counsel for the plaintiff in error that when two defendants charged with a felony, not a capital felony, are being jointly tried, counsel for the defendants are entitled to two hours' argument of the case. Counsel cite rulings of the Supreme Court (Cruce v. State, 59 Ga. 83; Cumming v. State, 99 Ga. 663, 27 S.E. 177; Butler v. State, 92 Ga. 603, 19 S.E. 51; Rawlins v. State, 124 Ga. 48, 52 S.E. 1) to the effect that in such a case each defendant is entitled to twenty peremptory strikes, and insist that it follows that, as the number of strikes for the defendants' side are doubled, the number of hours for argument should also be doubled. We cannot agree with this argument of learned counsel. The above-mentioned ruling was based upon the statute now embodied in section 1000 of the Penal Code of Georgia, in which it is specifically and expressly provided that:

"Every person indicted for a crime or offense which may subject him to death, or four years' imprisonment or longer in the penitentiary, may peremptorily challenge twenty of the jurors impaneled to try him."

It will be seen, from the wording of this section, that every person so indicted has the right to twenty peremptory challenges; and the Supreme Court has held, as above stated, that this means that every defendant so indicted is entitled to this number of strikes, no matter whether he is being tried separately, or jointly with other parties. Rule No. 5 of the Rules of the Superior Courts (Civil Code of 1910, § 6264), as amended by the convention of judges December 19, 1911, however, contains no provision that counsel for every defendant so indicted has the right to two hours for argument. On the contrary, they are therein expressly and clearly limited in their argument to one hour, unless the court in its discretion, on appropriate request, extends the time. Rule No. 5, supra, provides that:

"In felony cases other than capital felonies, counsel shall be limited in their argument to one hour to the side; * * * but if counsel on either side, before the argument in the case begins, apply to the court for an extension of the time prescribed for argument in this rule, * * * the court may grant such extension of time as may seem reasonable and proper."

It will be seen that this rule of court provides that in felonies less than capital felonies, each side is expressly limited to one hour for argument, and although two or more defendants may elect to be tried jointly, still it cannot be reasonably contended that there are more than two sides to the case. No matter how many defendants are being jointly tried, the state is one side, and the defendants (no matter how many) constitute the other.

Because the Supreme Court has held that in such a case the defendants are entitled to double the number of strikes, it does not necessarily follow that their counsel are entitled to double the number of hours for argument. In Lynn v. State, 140 Ga. 387, 79 S.E. 29, where two persons were jointly tried for murder, it was insisted by counsel for the defendants that, because the two defendants were entitled to double the number of strikes, they...