Kirk v. State, 66318

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: SHULMAN; McMURRAY, P.J., and BIRDSONG
• Citation: 168 Ga.App. 226,308 S.E.2d 592
• Parties: KIRK v. The STATE.
• Docket Number: No. 66318,66318
• Decision Date: 12 September 1983

Page 592

308 S.E.2d 592 168 Ga.App. 226 KIRK
v.
The STATE. No. 66318. Court of Appeals of Georgia. Sept. 12, 1983.
Rehearing Denied Sept. 29, 1983.
Certiorari Granted Nov. 9, 1983.

Page 595

[168 Ga.App. 232] James I. Parker, Cedartown, for appellant.

William A. Foster III, Dist. Atty., Jeffrey L. Ballew, Asst. Dist. Atty., for appellee.

[168 Ga.App. 226] SHULMAN, Chief Judge.

A jury convicted appellant of kidnapping Rita Polk, a child under the age of 16. Ga.L.1968, p. 1249, § 1. ¹ Enumerating 34 alleged trial errors, appellant now seeks reversal of his conviction.

1. Appellant first argues that his motion for new trial based on the general grounds was erroneously denied. The statute which appellant was found guilty of violating defined kidnapping as that which occurs when "[a] person over the age of 17 ... forcibly, maliciously or fraudulently leads, takes, carries away, decoys, or entices away any child under the age of 16 years against the will of the child's parents or other person having lawful custody." OCGA § 16-5-40(b) (Code Ann. § 26-1311) (Ga.L.1981, Ex.Sess., p. 8). Appellant maintains that neither the age of the child nor the fact that she was taken against the will of her parents was proven.

While it is true that no witness ever testified specifically as to the age of the child at the time of the kidnapping, her father stated that [168 Ga.App. 227] his oldest child was a male aged 13 and that the younger of his two daughters was named Sandra and was 10 years old. While it certainly would have been easier if someone had been asked about Rita's age, we cannot say that the state failed to prove that Rita was under 16 years of age. Insofar as parental permission is concerned, Rita's father testified that he had not given anyone permission to remove his daughter from his house and neither had his wife, to the best of his knowledge. Mrs. Polk did not testify. Since appellant's defense was insanity rather than that he had parental consent for his action, the father's testimony was sufficient to carry the state's burden with regard to parental permission.

2. Several days prior to the commencement of appellant's trial, defense counsel sought a continuance on the grounds of attorney ill health (OCGA § 17-8-24 (Code Ann. § 81-1413)) and the desire to have appellant undergo a thorough psychiatric analysis. An attorney who subsequently assisted defense counsel at trial argued the ill health portion of the motion while the ailing attorney presented the second ground. Although the motion was denied, the court agreed to the state's suggestion that the trial be delayed for two days. Appellant now takes issue with the ruling which denied that part of his motion based on his attorney's ill health.

"The illness ... of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance, provided that the party making the application will swear that he cannot go safely to trial without the services of the absent counsel, that he expects his services at the next term, and that the application is not made for delay only." OCGA § 17-8-24 (Code Ann. § 81-1413). "Generally, granting or refusing a continuance is a matter within the discretion of the trial court, and unless abused, such discretion will not be controlled. [Cits.]" McLendon v. State, 123 Ga.App. 290, 297, 180 S.E.2d 567. "The counsel himself is not, under all circumstances, the judge of whether he was merely indisposed, or whether his illness is such as is contemplated in the Code, § [17-8-24 (Code Ann. § 81-1413)]; for the court is the tribunal vested with the authority to decide from the facts and circumstances of this case as to whether the illness was a legal illness." McKenzie v. State, 72 Ga.App. 208, 216, 33 S.E.2d 539.

Page 596

"When counsel whose illness is the ground of the motion is himself in court presenting and urging the motion, the court is authorized, in the determination of the question whether the condition of counsel is such that the interests of justice demand a postponement of the case, to take into consideration the general appearance of counsel and the mental and physical vigor displayed in the presentation of the motion; and when such a motion is overruled, this court may take into [168 Ga.App. 228] consideration what appears in the record as to the manner in which counsel conducted the case, in determining whether there has been such an abuse of discretion in refusing the continuance as to require a reversal of the judgment." Rawlins v. State, 124 Ga. 31 (Hn. 19), 52 S.E. 1. Having reviewed the record with the above considerations in mind, we are convinced that the trial court did not abuse its discretion in denying the motion for continuance on this ground. Wallis v. State, 137 Ga.App. 457, 224 S.E.2d 91, and its progeny are not applicable to the situation presently before us since they are concerned with the denial of a defendant's motion for continuance due to the absence of his attorney when that denial results in the denial of the defendant's right to be represented by counsel of his own choice for reasons beyond the control of the defendant.

3. During voir dire, a juror stated that she had formed the opinion that the child had been kidnapped. The trial court denied appellant's motion to strike the juror for cause after it was ascertained that the prospective juror had not formed or expressed an opinion as to the guilt or innocence of the accused, had no bias or prejudice for or against the accused, and would base her decision as a juror solely on the evidence presented and the law contained in the charge of the court. Appellant now presents the denial of his motion to strike for cause to this court for review.

"[I]f a challenge is made and improperly overruled by the court, but the juror so challenged for cause does not serve because subsequently struck by the complaining party, such ruling by the court is not error unless it appears that the party had to exhaust his peremptory challenges in order to strike that juror. [Cit.]" Bradham v. State, 243 Ga. 638(3), 256 S.E.2d 331. Assuming arguendo that the juror in question was indeed struck through the use of one of appellant's peremptory strikes, no reversible error occurred when the trial court refused to remove her for cause. In the first place, there is no evidence that appellant exhausted his peremptory challenges before the jury was selected. Compare Hutcheson v. State, 246 Ga. 13(2), 268 S.E.2d 643. Secondly, the potential juror's answers to the questions propounded by the trial court and the assistant district attorney demonstrated that her opinion "would not cause her to be prejudiced against the defendant, nor impair her ability to be impartial, [that she would be able] to consider the issues based solely on the evidence, and to...