Duke v. State, 39050
| Decision Date | 28 September 1961 |
| Docket Number | No. 2,No. 39050,39050,2 |
| Citation | 104 Ga.App. 494,122 S.E.2d 127 |
| Parties | Alex DUKE v. STATE |
| Court | Georgia Court of Appeals |
J. Laddie Boatright, Douglas, for plaintiff in error.
Jack W. Ballenger, Sol. Gen., Baxley, for defendant in error.
Syllabus Opinion by the Court.
1. Where an indictment was returned against the defendant at the September, 1960, term of the Superior Court of Jeff Davis County, and the defendant took no action at that term or the following December term, it was not error, on the call of the case for arraignment and trial at the March, 1961, term for the court to deny a motion for continuance made on the sole ground that counsel had only been employed the day before and wished additional time to prepare special demurrers to the indictment. The defendant must be afforded benefit of counsel, and this includes time sufficient for counsel to prepare for trial, but where the defendant was apprised of the charge against him at a previous term of court and himself fails or neglects to procure counsel or ask the court to do so for him there is no error in refusing a request for additional time on the ground that the counsel has himself had insufficient time to prepare the defense. Shivers v. State, 53 Ga. 149; Jones v. State, 115 Ga. 814, 42 S.E. 271. It is the defendant's duty to employ an attorney to aid in the preparation of his defense sufficiently in advance of the trial of the case. Hall v. State, 22 Ga.App. 112, 95 S.E. 936.
2. Borwn v. State, 151 Ga. 497, 500, 107 S.E. 536, 538. In that case the ruling in O'Bannon v. State, 76 Ga. 29, to the effect that it was not error to receive a verdict in the absence of the defendant's counsel, the defendant himself being present, was disapproved. The right of counsel to be present and to poll the jury upon the return of the verdict is a material right, and in the absence of a waiver by the defendant or his counsel, or at least of the implied waiver resulting from voluntarily absenting himself in such manner as not to be easily located, a new trial should be granted. It appears from ground 2 of the motion for a new trial that when the jury returned the sole counsel for the defendant was in a room in the courthouse adjacent to the court room, and that the verdict was received and published, the defendant sentenced, and the jury discharged, in his absence. While he had no specific permission to be out of the court room, neither does it appear that any effort was made to locate him, or that any other steps to protect the defendant's rights were taken. Under these circumstances we hold that the defendant and his c...
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Thacker v. State
...was said: 'While it is the right of the defendant to have counsel with him at every stage during the trial of a case (see Duke v. State, 104 Ga.App. 494, 122 S.E.2d 127), no harm resulted to the defendant, where in the absence of his counsel, the court turned the jury over to the sheriff to......
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McLendon v. State
...22 Ga.App. 112(1b), 95 S.E. 936; Shivers v. State, 53 Ga. 149(2). And see Roberts v. State, 32 Ga.App. 339, 123 S.E. 151; Duke v. State, 104 Ga.App. 494, 122 S.E.2d 127; Bradley v. Sherwin, 110 Ga.App. 632(8), 139 S.E.2d It has been held that where a party has had several months in which to......
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Callahan v. State
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