Johnson v. State
| Decision Date | 07 April 1960 |
| Docket Number | Nos. 20807,20808,20810,s. 20807 |
| Citation | 215 Ga. 839,114 S.E.2d 35 |
| Parties | Clifford JOHNSON v. STATE. Brannon EPPS v. STATE. George ALFORD, Jr. v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The verdicts are supported by evidence, and it was not error to overrule the general grounds of the motions for new trial.
2. Generall, every person against whom a bill of indictment is found shall be tried at the term of the court at which the indictment is found, 'unless the absence
of a material witness or the principles of justice should require a postponement of the trial.' Code § 27-2002. In the present cases, in so far as the motion for continuance was based upon the absence of certain nonresident character witnesses for one of the defendants, the motion did not conform to the requirements of the law. Code § 81-1410. Whether or not the 'principles of justice' (§ 27-2002) would otherwise require a postponement, and whether or not time should have been granted for the filing of a petition for change of venue, are questions that do not require any ruling by this court, since a new trial must be granted for the reason hereinafter set out, and the same questions under similar facts cannot arise upon a retrial of the cause. See Smith v. State, 215 Ga. 362(3), 110 S.E.2d 635.
3. There was no evidence which would authorize a charge on the law applicable to an assault with intent to rape.
4. If the prosecutrix yielded through violence and intimidation by any of the defendants, as testified by her, it was not essential that the State show the use of actual physical force and violence by the defendant George Alford, Jr. Vanderford v. State, 126 Ga. 753(5), 55 S.E. 1025.
5. It is not the intent and purpose of the act of 1956 (Ga.L.1956, p. 796, Code, Ann., § 27-210) to require a vain or useless act. Where a defendant is indicted in a capital case within 72 hours after his arrest (as appears from the records in the present cases), the incarceration is by reason of the indictment and not the warrant, and the act of 1956 could have no application, since a committal court would have no jurisdiction to determine whether or not there was probable cause for indictment after the indictment had already been returned. See Johnson v. Plunkett, 215 Ga. 353, 110 S.E.2d 745.
6. Under the evidence in these cases, it was not error to admit the photographs identified in ground 6 of the amended motions for new trial. Johnson v. State, 158 Ga. 192, 197, 123 S.E. 120; Russell v. State, 196 Ga. 275, 26 S.E.2d 528; Anderson v. State, 206 Ga. 527, 57 S.E.2d 563.
7. Ground 7 of the amended motions was properly overruled.
8. The court erred in charging the jury as contended in ground 8.
9. The extract from the charge assigned as error in ground 9 does not show reversible error.
James E. Weldon, Wilson P. Darden, L. M. Wyatt, LaGrange, for plaintiff in error.
Wright Lipford, Sol. Gen., Newnan, E. W. Fleming, Sol., Hogansville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Deputy Asst. Atty, Gen., for defendants in error.
The defendants were indicted for the offense of rape. They were tried jointly, were convicted, and sentenced to be electrocuted. Each excepts to the denial of his motion for new trial as amended (the grounds being the same in each case). Only the assignments of error made in grounds 8 and 9 of the amended motions require any elaboration.
In ground 8 error is assigned on the following extract from the charge of the court:
The State's witnesses Bonney Grizzard and Aaron Brooks, on cross-examination, testified to facts which, if believed by the jury, were sufficient to show that the reputation of the prosecutrix as a woman of lewd character was bad. The charge as thus given excluded any consideration by the jury of this testimony in determining whether or not the reputation of the prosecutrix as a woman of lewd character was bad, and confined the jury to a consideration of...
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