Hewitt v. State

• Decision Date: 18 November 1921
• Docket Number: (No. 12773.)
• Citation: Hewitt v. State, 27 Ga.App. 676, 109 S.E. 679 (Ga. App. 1921)
• Parties: HEWITT. v. STATE.
• Court: Georgia Court of Appeals

27 Ga.App. 676

109 S.E. 679

HEWITT.

v.STATE.

(No. 12773.)

Court of Appeals of Georgia, Division No. 1.

Nov. 18, 1921.

(Syllabus by the Court.)

Error from Superior Court, Pierce County; J. I. Summerall, Judge.

Will Hewitt was convicted of an offense, and he brings error.Affirmed.

S. Thos. Memory, of Blackshear, for plaintiff in error.

A. B. Spence, Sol.Gen., of Waycross, for the State.

BLOODWORTH, J.[1] 1.As the alleged errors of the court in rejecting certain affidavits in support of the sixth and seventh grounds of the motion for a new trial, and upon the rejection of which error is assigned in the bill of exceptions, are not referred to in the brief of counsel for plaintiff in error, they will be treated as impliedly abandoned, and will not be considered by this court where there is no "general insistence upon all the grounds of the motion."Ga. L.1921, p. 232, § 1.

2.Where a motion was made to continue a case on account of the absence of a witness, and it was made to appear that there were present several other witnesses who would testify to the same facts, we cannot say, as a matter of law, that there was a "plain, palpable, and flagrant abuse" of the discretion of the trial judge when he refused to continue the case.Especially should a new trial not be granted in this case on account of the refusal of the judge to grant a continuance, as among the witnesses sworn there were three who testified to the same material fact to which it was alleged the absent witness would swear.

"It is not cause for reversing the denial of a continuance that the movant made a legal showing as to the absence of one witness; it appearing by the same showing, on cross-examination, that another witness was present by whom he could prove the facts to which the absent witness was expected to testify, and it not appearing that the discretion of the court was abused."Huffman v. State, 95 Ga. 469 (2), 20 S. E. 216.

In Curry v. State, 17 Ga. App. 377 (1), 87 S. E. 685, this court held that—

"All applications for continuances are addressed to the sound legal discretion of the trial judge (Penal Code, § 992), and his decision thereon will not be reversed unless there has been a plain, palpable, and flagrant abuse of this discretion"—citing Sealy v. State, 1 Ga. 213, 44 Am. Dec. 641;Howell v. State, 5 Ga. 48;Roberts v. State, 14 Ga. 6;Revel v. State, 26 Ga. 275;Long v. State, 38 Ga. 491;Oglesby v. State, 121 Ga. 602, 49 S. E. 706;Rawlins v. State, 124 Ga. 31, 52 S. E. 1;Lyles v. State, 130 Ga. 294, 60 S. E. 578;Parker v. State, 3 Ga. App. 336, 59 S. E. 823.

See, also, Blount v. State, 18 Ga. App. 204 (1), 89 S. E. 78.

3.The fifth ground of the motion for a new trial alleges error"because the court erred in overruling the motion made by defendant to disqualify his honor, J. I. Summerall, presiding in said case, " the alleged reason for his disqualification being that—

"One T. L. Tuten was a volunteer prosecutor and an illegitimate son of John Aspinwall, and that the said T. L. Tuten was related to his honor, J. I. Summerall, within the degree prohibited by the statute; that the said T. L. Tuten had contracted and guaranteed the payment of the fee to be paid by the prosecutor to an attorney, R. G. Mitchell, Jr., em ployed to aid the solicitor general in the prosecution of the defendant, Will Hewitt, in said case, and that the said attorney was actually rendering such aid on the trial of the case at the time of said motion."

Section 4642 of the Civil Code of 1910 provides in part that—

No judge "can sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity."

In Luke v. Batts, 11 Ga. App. 783 (3), 76 S. E. 165, it was held that—

"The statutory grounds of the disqualification of a judicial officer, as contained in Civil Code, § 4642, are exhaustive.Elliott v. Hipp, 134 Ga. 844, 68 S. E. 736, 137 Am. St. Rep. 272, 20 Ann. Cas. 423."

While in Lyens v. State, 133 Ga. 587 (4), 66 S. E. 792, it was held that:

"Where one contributes to a fund to be used in employing an attorney to aid the solicitor general in the prosecution of a particular person for an alleged offense with which he is charged, and the attorney does render such aid upon the trial of the case, the person so contributing is to be considered as a volunteer prosecutor, and one who is related within the fourth degree to such volunteer prosecutor is not competent to sit as a juror on such trial" —this rule will not be extended to one who has only "contracted to guarantee the payment of the fee to be paid by the prosecutor to the attorney employed to aid the solicitor general in the prosecution of the defendant."

4.The sixth ground of the motion for a new trial is based upon an alleged error in the refusal of the court to allow to the defendant"a new panel of jurors from which to strike, on the ground that such evidence and statements were prejudicial to the rights of defendant, and were...