Curry v. State

• Citation: 87 S.E. 685,17 Ga.App. 377
• Decision Date: 20 November 1915
• Docket Number: (No. 6691.)
• Court: United States Court of Appeals (Georgia)
• Parties: CURRY et al. v. STATE.

87 S.E. 685

17 Ga.App. 377

CURRY et al.

v.STATE.

(No. 6691.)

Court of Appeals of Georgia.

Nov. 20, 1915.

Rehearing Denied Jan. 7, 1916.

(Syllabus by the Court.)

Russell, C. J., dissenting.

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

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

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. [6] 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 beingjointly 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 were also entitled to a panel of 96 jurors, instead of 48, from which to strike. And the Supreme Court in that case denied this contention of counsel, and said:

"The defendant can require no more than the statute grants to him. He is granted a panel of 48 jurors, and while two were indicted jointly, each had the right, as did the state, to a severance on the trial, if the election was made. Penal Code, § 995. Had the defendant elected to be separately tried, he would have had a full panel of 48 jurors from which to strike. But as he did not elect to sever, but to be tried jointly, it cannot be held that he was entitled, as a matter of law, to a panel of 96 jurors. It is apparent what such a ruling would lead to, if a number of persons were jointly indicted, and all the defendants elected to be jointly tried, and each insisted on the rule contended for here. The defendant is entitled to all that the statute grants to him, and no more, and it grants to him a panel of 48 jurors, and the right to...