Frashier v. State, 21486

• Decision Date: 08 February 1962
• Docket Number: No. 21486,21486
• Citation: 124 S.E.2d 279,217 Ga. 593
• Parties: Edward C. FRASHIER v. The STATE.
• Court: Georgia Supreme Court

Page 279

124 S.E.2d 279

217 Ga. 593

Edward C. FRASHIER v. The STATE.

No. 21486.

Supreme Court of Georgia.

Feb. 8, 1962.

Edward C. Frashier, after having been indicted for the murder of Henry Page, was tried before a judge and jury, found guilty and sentenced to life imprisonment. The defendant filed his motion for new trial based on the general grounds and a special ground which stated '[t]hat he desired to offer himself as a witness in his own behalf, but did not do so in the trial of said case, because it would have been a futile endeavor under sttled Georgia law interpreting Section 38-415 and 38-416 of the 1933 Annotated Code of Georgia. That by movant not having offered himself as a witness in his own behalf in said trial, he was deprived of his constitutional rights under the Fourteenth Amendment to the United States Constitution. * * * Movant shows that he was deprived of his liberty without due process of law within the meaning and prescription of that portion of the Fourteenth Amendment which provides: 'Nor shall any State deprive any person of life, liberty, or property, without due process of law.', in that to deny movant the right to be sworn and testify as a witness, which right he did not claim at the trial, deprived him of his liberty without due process of law.' (Italics ours).

Defendant abandoned his general grounds, choosing to proceed instead on the special ground set out above.

D. L. Lomenick, Jr., Robert E. Coker, LaFayette, for plaintiff in error.

Earl B. Self, Sol. Gen., Summerville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court.

MOBLEY, Justice.

That a constitutional question may not be raised for the first time in a motion for new trial is too well settled to be seriously questioned. Brown v. State, 114 Ga. 60(2), 39 S.E. 873; Ga. & Fla. Ry. v. Newton, 140 Ga. 463(3), 79 S.E. 142; Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813(1), 184 S.E. 297; West v. Frick Co., 183 Ga. 182, 187 S.E. 868; Calhoun v. The State, 211 Ga. 112, 84 S.E.2d 198. It is apparent from the face of the motion for new trial that the defendant made no effort whatever to raise the question during the trial of the case and he cannot be heard to raise it now. See Williams v. State, 210 Ga. 665, 82 S.E.2d 217, cause remanded 75 S.Ct. 814, 349 U.S. 375, 99 L.Ed. 1161, adhered to 211 Ga. 763, 88 S.E.2d 376, cert. den. 350 U.S. 95, 76 S.Ct. 326, 100 L.Ed. 828, reh. den. 350 U.S....