Horton v. State

• Decision Date: 15 July 1974
• Docket Number: No. 2,No. 49491,49491,2
• Citation: 132 Ga.App. 407,208 S.E.2d 186
• Parties: James D. HORTON v. The STATE
• Court: Georgia Court of Appeals

Page 186

208 S.E.2d 186

132 Ga.App. 407

James D. HORTON v. The STATE.

No. 49491.

Court of Appeals of Georgia, Division No. 2.

July 15, 1974.

Hoyt & Boatright, George L. Hoyt, Alma, for appellant.

Dewey Hayes, Dist. Atty., Douglas, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The defendant appeals from his conviction of the offense of aggravated battery.

The defendant enumerates as error (1) the trial judge's failure to grant a continuance or postponement as requested prior to trial, and (2) the denial of his motion for new trial on the ground that his attorney, George Hoyt, 'had been hired only a few minutes prior to the convening of court and had not had an opportunity to examine or subpoena witnesses, obtain a transcript of the prior trial or in any manner prepare for said trial.'

A review of the transcript reveals the following: 'December 3, 1973. 10:23 a.m. The Court: What case do you call, Mr. Hayes? Mr. Hayes: I call the case of the State versus James D. Horton, No. 2991. The Court; All right, who represents the defendant? Mr. Hoyt: I represent Mr. Horton. The attorneys that did represent him no longer do. He approached me Friday to see whether or not I would take his case, and not until today was I hired, so, there is no way that I can be ready. I haven't had an opportunity to even get into it at all. He tells me that Mr. Boatright represented him before, the elder one, and he is unable to participate in the trial is my understanding. The Court: I believe Boatright & Boatright represented him before, and Boatright & Boatright is a partnership, and my understanding about a partnership arrangement is that if there's any advantage to having a partnership arrangement at all it is that you've got more than one lawyer. When were you notified about this Mr. Hoyt? Mr. Hoyt: I was notified Friday, first. The Court: This past Friday? Mr. Hoyt: Yes. The Court: Mr. Boatright, I believe when this case was tried before you weren't admitted to practice, were you? Mr. Jimmy J. Boatright: Yes, sir. The Court: And I believe Laddie came over here and tried this case. Now, is Mr. Joseph Boatright sick? Mr. Jimmy J. Boatright: He is unable to participate in the trial at this time, your Honor. The Court: Well, as I recall, Laddie (J. Laddie Boatright) tried it before, and, as a matter of fact, you and Laddie together for the most part. Is that the reason-he is sick and that's the reason? Mr. Jimmy J. Boatright: Yes, sir. Laddie came over the last time-because his father was sick and unable to continue the trial Laddie came over and helped out. Laddie has never been retained to represent him. The Court: Is this man in the courtroom? Mr. Jimmy J. Boatright: Yes, sir. The Court: When were you notified that your lawyers were not in this case and to get another lawyer? The Defendant: Thursday night last week. The Court: Thursday night? I know Mr. Boatright might very well be ill. He might very well be, and I don't question it. I know he has a health problem; But, I want to say this, gentlemen: We have this kind of thing over and over and over and over, and I'm getting aggravated with it. We can put this case off now until the next term and it will be possible to have the identical situation at the next term. And it is amazing to me at (sic) the number of people who find out at the very last minute that they can't go to trial. Now, if there is any advantage to a partnership it is that there's more than one lawyer. Now, we have a lot of trouble with this thing. We are having a lot of trouble all over this circuit with this very identical thing. Ten years ago we never heard about a thing like that, but now every time we turn around it's something like this. Now, I hate to blow my stack here, but I'm about to. All, right, go on and call the next case for announcement, Mr. Hayes. (The case of the State vs. Alexander Chandler, charged with aggravated assault was then called, announced ready, and a jury was duly selected, after which time a plea of guilty was entered.) December 3, 1973, 1:30 p.m. The Court: All right, proceed. Mr. Hayes I call case No. 2991. I call the case of the State of Georgia versus James D. Horton charged with aggravated assault. The state is ready. Mr. Hoyt: Your Honor, I can't in good conscience say I'm ready. Of course, we've been into this several times, but, nevertheless, we're here. The Court: Now, I believe this case when it was up before Mr. Jimmy Boatright was one of the attorneys in the case, and I understand that he withdrew, Mr. Hoyt. I want to point this out, that my information is that, as a matter of fact, Boatright, Boatright & Boatright were the attorney's in this case, and Mr. Jimmy Boatright participated in the last trial along with Mr. Laddie Boatright, who is a member of the same firm, and the case is getting pretty old. I understand that the defendant was notified last Thursday that Boatright, Boatright & Boatright-now, Mr. Joseph, I believe, was out of it prior to that. I understand his health is not good. I (am) completely aware of that; but, it seems to me with Mr. Jimmy Boatright participating and still in the case, as old as this case is and as long as it's been pending, and the effect of this at this point is simply to bring Mr. George Hoyt into the case, and I don't believe that that would constitute ground for continuance. The case was tried when? In May this year? Mr. Hayes: Your Honor, we tried this case at the last term of court. May or June. It was tried the first week in June, I believe. The Court: Then, as I understand it, I wasn't notified about any change so far as counsel was concerned, and I think with Mr. Boatright participating and continuing in the case, I think we're going to go to trial with it. Mr. Hoyt: Your Honor, I'd like for the record to reflect that I'm involved in this case only at the request of Mr. Horton. He came to me on Friday...