Gower v. State

• Decision Date: 12 June 1928
• Docket Number: 6586.
• Citation: Gower v. State, 166 Ga. 500, 143 S.E. 593 (Ga. 1928)
• Parties: GOWER v. STATE.
• Court: Georgia Supreme Court

143 S.E. 593

166 Ga. 500

GOWER v. STATE.

No. 6586.

Supreme Court of Georgia

June 12, 1928

Syllabus by Editorial Staff.

As affects continuance, time to be allowed counsel to prepare for trial is in sound discretion of trial judge, and his discretion will not be interfered with by Supreme Court unless abused.

Where witnesses gave direct evidence supporting conviction for murder, both swearing that defendant was principal in crime and one witness was jointly indicted with defendant, and both admitted their presence but denied participation in crime and swore to other participating with defendant in crime court properly submitted issue to jury whether either of witnesses was accomplice.

Mere presence at scene of crime does not require finding that one is principal.

Participation in intent and criminal act is essential to make one an accomplice.

Where sequestration of witnesses has been ordered by court and witness in violation of court's order remains in court and hears testimony of other witnesses, witness is not thereby disqualified or rendered incompetent, though he may be subject to attachment and punishment for contempt.

Ground of motion complaining that it was duty of court to declare mistrial on account of argument of Solicitor-General, even though meritorious, does not show error, where there was no motion for mistrial.

In prosecution for murder, charge to convict if defendant was in no danger of being killed by deceased, who was not committing or attempting to commit assault, and circumstances were not sufficient to excite fears of reasonable man that deceased was about to commit serious personal injury on defendant, held not erroneous as not adjusted to defendant's plea of alibi, or as indicating that court did not believe defense of alibi, where court instructed on law of alibi.

Affidavits impeaching in character as to unimportant details of evidence, not made part of motion for new trial, cannot be considered.

Error from Superior Court, Gwinnett County; W. W. Stark, Judge.

Sam Gower was convicted of murder, and he brings error. Affirmed.

J. Mallory Hunt, of Atlanta, for plaintiff in error.

Pemberton Cooley, Sol. Gen., of Jefferson, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

Syllabus OPINION.

GILBERT J.

1. "The time to be allowed counsel to prepare for trial is in the sound discretion of the trial judge; and his discretion will not be interfered with by this court, unless abused." Kelloy v. State, 151 Ga. 551 (1), 107 S.E. 488; Ivey v. State, 154 Ga. 63, 113 S.E. 175. In this case no abuse is shown.

2. None of the grounds of the motion for a new trial which complain of the admission of evidence, or the refusal to rule out evidence, show error.

3. Movant complains that the verdict is not supported by evidence; that the only evidence connecting the accused with the crime was that of an accomplice. The witnesses gave direct evidence sufficient to support the verdict. Both swore that movant was a principal in the crime. One was jointly indicted with movant; both admitted their presence. Each of these witnesses denied participation, and each swore that the other participated with movant in the homicide. The court properly submitted as an issue to the jury whether either of these witnesses was an accomplice. Mere presence at the scene of a crime does not require a finding that one is a principal. Participation in the intent and the criminal act is essential to make one an accomplice. Lowery v. State, 72 Ga. 649; Allen v. State, 74 Ga. 769; Springer v. State, 102 Ga. 447, 451, 30 S.E. 971; Walker v. State, 118 Ga. 757, 45 S.E. 608; Compare Fudge v. State, 148 Ga. 149 (2), 95 S.E. 980.

4. "Where the sequestration of the witnesses has been orderd by the court, and in violation of the court's order a witness remains in court and hears the testimony of the...