Mcarver v. State

• Decision Date: 03 February 1902
• Citation: 40 S.E. 779,114 Ga. 514
• Parties: McARVER v. STATE.
• Court: Georgia Supreme Court

40 S.E. 779

114 Ga. 514

McARVER

v.STATE.

Supreme Court of Georgia.

Feb. 3, 1902.

CRIMINAL LAW—TRIAL—CONTINUANCE—NEW TRIAL.

Peremptorily forcing one indicted for a criminal offense to trial immediately after the appointment of counsel (who was not familiar with the case) to defend him, without giving to such counsel an opportunity to make an investigation of the case or prepare for the defense, is, although no other ground for a postponement or continuance of the case be urged, cause for a new trial. (Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Ed McArver was convicted of burglary, and brings error. Reversed.

W. A. Barnett, for plaintiff in error.

Moses Wright, Sol. Gen., for the State.

LITTLE, J. McArver was indicted for the offense of burglary by the grand jury of Floyd county hi July, 1901, and was, at the same term of the court, tried and convicted. He made a motion for a new trial, among the grounds of which are that the verdict is contrary to law, and without evidence to support it As the case goes back to be heard again, we do not pass upon these grounds, but confine our consideration to another, which (as explained) is certified to be true, and is sufficient to require the grant of a new trial. It is complained that prior to the trial of his case the mother of the defendant had employed Mr. Chamblee, an attorney, to represent her son in the trial; that counsel was then furnished with a list of the witnesses, and the case was fully explained to him; that this attorney appeared for the defendant at his commitment trial, and was the one the accused relied upon to represent him on his trial in the superior court. When the case was called in the latter court, Mr. Chamblee declined to represent him, and the judge appointed other counsel to do so, who was not familiar with the case, knew none of the witnesses, and was wholly unprepared to enter into the trial. The appointed counsel asked for sufficient time to procure the attendance of the witnesses, a list of whom had been furnished Mr. Chamblee. This motion was overruled by the judge, and it is complained that the defendant was forced to trial, and thereby denied benefit of a defense which be would have been able to set up and establish. In passing on this ground of the motion the judge recites that it Is true with a qualification—that is, that "on the call of the case, the defendant having stated that his counsel was R. L. Chamblee, Esq., that gentleman stated that he did not represent the defendant, no satisfactory agreement having been made for that purpose. Thereupon the court appointed C. E. Davis, an attorney at law of this court, to defend the defendant. Mr. Davis asked the court to postpone the trial of the case till next day, to get some witnesses for the defendant, but no showing was made as to who the witnesses were, nor as to what the defendant expected to prove by any of them. It appeared that the defendant had been in jail about two months on this charge. The court then directed that the case go to trial." Under this statement of the judge we are very clearly of the opinion that a postponement of the case to enable counsel not only to ascertain the names of the witnesses which the defendant wanted, but to look into and prepare the defense, should have been granted, and in overruling the motion for a new trial on this ground the trial judge erred. Section 8 of the Penal...