Harris v. State

• Decision Date: 05 April 1977
• Docket Number: No. 53602,No. 3,53602,3
• Citation: 142 Ga.App. 37,234 S.E.2d 798
• Parties: R. L. HARRIS v. The STATE
• Court: Georgia Court of Appeals

Page 798

234 S.E.2d 798

142 Ga.App. 37

R. L. HARRIS v. The STATE.

No. 53602.

Court of Appeals of Georgia, Division No. 3.

April 5, 1977.

Rehearing Denied April 19, 1977.

Gilberg, Kraselsky & Owens, Larry B. Owens, Albany, for appellant.

William S. Lee, Dist. Atty., Hobart M. Hind, Asst. Dist. Atty., Albany, for appellee.

MARSHALL, Judge.

Appellant Harris was indicted, tried and convicted by jury of the offenses of aggravated sodomy and simple battery. He was sentenced to serve 20 years for the sodomy offense followed by one-year probation for the battery. Harris enumerates eight errors. Held :

1. As his first enumeration of error, Harris complains that the trial judge's recharge, after only two hours of deliberation, in the language of the so-called "Allen" or "dynamite" charge subjected him to a coerced verdict. A charge almost identical to that in the instant case and given under similar circumstances, was approved by our Supreme Court in the case of Gambo v. Dugas & Son, 145 Ga. 614, 89 S.E. 679 (1916). The trial judge in this case was careful to point out to the jurors that they should not surrender their conscientious convictions. We find no error in the charge by the trial judge under the circumstances. See Ponder v. State, 229 Ga. 720(2), 194 S.E.2d 78 (1972).

2. In his second enumeration of error, the appellant avers that the evidence did not raise an issue of intoxication, therefore the trial judge erred in giving an instruction on that subject. There was evidence that at the time of his arrest, the appellant appeared to have been drinking, and the arresting officer could smell the odor of alcohol about Harris. From this evidence, the judge was authorized to instruct the jury on the subject of intoxication. Daniel v. State, 171 Ga. 335, 155 S.E. 478 (1930); Page v. State, 120 Ga.App. 709, 172 S.E.2d 207 (1969); Smith v. State, 24 Ga.App. 654, 101 S.E. 764 (1920). This enumeration is without merit.

3. In his third enumeration of error, the appellant contends that the trial judge erred in denying his motion for a continuance based upon the absence of an essential defense witness. The appellant alleged that the missing witness would establish that Harris was not the culprit. Upon his motion for continuance, the appellant admitted that he did not know where the missing witness was, made no indication as to how long the witness might be gone, and failed to show that the witness was not absent at his own instigation.

In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he resides within 100 miles of where the case is pending; that his testimony is material; that such witness is not absent by the permission, directly or indirectly, of such applicant; that he expects he will be able to procure the testimony of such witness at the next term of the court; and that such application is not made for the purpose of delay, but to enable the party to procure the testimony of such witness; and must state the facts expected to be proved by such absent witness. Code § 81-1410. Orr v. State, 63 Ga.App. 352, 11 S.E.2d 102 (1940). A motion to continue is addressed to the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion. Corbin v. State, 212 Ga. 231(1), 91 S.E.2d 764 (1956). Where the moving party fails to make a proper showing of the requirements set forth in Code Ann. § 81-1410, the denial of a continuance motion cannot be said to be an abuse of discretion. Scoggins v. State, 98 Ga.App. 360, 106 S.E.2d 39 (1958). In this case, Harris failed to establish by any evidence that he would ever be able to obtain the whereabouts of the missing witness, whether the witness was within 100 miles of the court, or that the witness was not absent with Harris' permission. Considering these deficiencies, the trial judge did not abuse his discretion in denying the motion for continuance. Jones v. State, 135 Ga.App. 893, 219 S.E.2d 585 (1975); Wheeless v. State, 66 Ga.App. 60, 17 S.E.2d 190 (1941).

4. In enumeration of error four, the appellant contends that the trial judge erred in failing to grant a new trial. The basis of this error is an assertion by Harris that a witness for the state stated at the trial that he had tried to locate the defenses's missing witness without success, when in fact the officer had misrepresented the facts in that he either had not looked at all for the witness or not very diligently. Contrary to the assertion of the appellant, the officer testified that he had searched as best he could based upon the instructions furnished by the appellant as to the possible whereabouts of the witness, but to no avail. More importantly, the appellant does not contend that a more diligent search would have revealed the witness and made him available. The rule is well established that to warrant a new trial, the appellant must show harm as well as error. Barnhill v. State,135 Ga.App. 654, 218 S.E.2d 663 (1975); Brooks v. State, 125 Ga.App. 867, 189 S.E.2d 448 (1972). The appellant not having shown how he had been injured by the lack of a more diligent search, it was not error for the trial judge to deny the motion for a new trial.

5. In enumeration of error 5, the appellant contends that the trial judge erred in refusing to appoint a defense psychiatrist in view of the appellant's indigency. Under the decision of our Supreme Court in Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972) and the cases cited therein, the refusal to provide a psychiatric examination of the defendant was not error. There was no special plea of insanity filed in the instant case, and under such circumstances the granting of the motion for a psychiatric examination is within the sound discretion of the trial judge. Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975) and cits.

6. In the sixth enumeration of error, Harris argues that the trial judge erred in allowing to testify, over objection, a witness who was known from the beginning to be a witness possessing information, but was not on the state's list of witnesses. The prosecuting attorney stated in his place that he had not known about the witness until shortly before the witness testified. The defendant's counsel was given an opportunity to interview the witness. The appellant argues that the officers who originally investigated the case knew about this witness and that their knowledge was imputable to the prosecuting attorney. There is no merit in this contention. In Evans v. State, 227 Ga. 571(3), 181 S.E.2d 845 (1971), it was held that the knowledge of police officers, who knew about two witnesses shortly after the crime because of their investigation of the case, was not imputable to the district attorney. See Scott v. State, 230 Ga. 413, 414, 197 S.E.2d 338 (1973); Yeomans v. State, 229 Ga. 488(2), 192 S.E.2d 362...