McCrary v. State
| Decision Date | 16 November 1972 |
| Docket Number | No. 27341,27341 |
| Citation | 229 Ga. 733,194 S.E.2d 480 |
| Parties | Prentice McCRARY v. The STATE. |
| Court | Georgia Supreme Court |
Thomas M. Jackson, Macon, John H. Ruffin, Jr., Augusta, for appellant.
Ben Miller, Dist. Atty., Thomaston, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Daniel I. MacIntyre, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Prentice McCrary was convicted of rape. His motion for a new trial was overruled and he appealed, enumerating three grounds of error.
1. Defendant's motion for a continuance based on the ground of unfavorable newspaper publicity attendant upon the trial and conviction during the preceding week of the accused's co-indictee was properly overruled. The basis of this motion was that because of such unfavorable publicity a fair and impartial jury could not be obtained. However, the answers under oath by the prospective jurors to the questions propounded to them on voir dire showed that they had formed no fixed or unchangeable opinion as to the guilt or innocence of the accused. 'There is no inference of prejudice requiring a change of venue (or a continuance) from the mere fact of the publishing of descriptive or even denunciatory matter, or even from the juror's having formed or expressed an opinion from rumor or from reports from newspapers or other news media; what is required is a showing that the juror had formed such a fixed or unchangeable opinion as to the guilt or innocence of the defendant as would not yield readily to the testimony.' Thacker v. State, 226 Ga. 170, 174, 173 S.E.2d 186. The granting or refusing of a continuance, like the granting or the refusing of a motion for a change of venue, is within the discretion of the trial judge. Such discretion will not be controlled by the appellate courts unless abused. No abuse of discretion in refusing to grant the motion for a continuance is shown by the record in this case. Morgan v. State, 224 Ga. 604(1), 163 S.E.2d 690.
2. The trial court did not err in denying the motion of counsel for the accused for an adjournment so as to permit an absent witness who had not been subpoenaed to be brought into court to testify. There was not showing as to the materiality of the testimony which the accused expected to procure from the witness. The denial of this motion like the denial of a continuance on the ground of an absent witness lies within the discretion of the trial court, and unless this discretion be shown to have been manifestly abused the judgment in this regard will not be controlled by this court. Herndon v. State, 111 Ga. 178(1), 36 S.E. 634; Harris v. State, 119 Ga. 114, 115-116(1), 45 S.E. 973; Morgan v. State, supra.
3. There is no merit in the contention of the appellant that the court erred in permitting the victim of the attack to identify the accused in court. She testified as to having ample opportunity to observe the accused during the time of the commission of the crime. Furthermore, the accused in his unsworn statement to the jury did not deny his presence at the scene of the crime or his participation therein, contending that he was intoxicated at the time and therefore not responsible for his actions. Under these circumstances, the in-court identification was not harmful error to the accused.
4. The trial court did not err in refusing to exclude from evidence 'property which (was) fruit of an illegal search and seizure and which (was) not shown to be in possession of the State until produced at trial.' The transcript shows that all of the physical evidence which was admitted was seized as a result of a search pursuant to a warrant. The State, at least, made a prima facie showing that the warrant was issued on a showing of probable cause. No prior motion to suppress this evidence under the provisions of § 13 of the Act approved March 16, 1966 (Ga.L.1966, pp. 567, 571; Code Ann. § 27-313) was made. No contention as to the invalidity of the search warrants is raised on this appeal.
5. Appellant contends that the charge of the court on the law of conspiracy was unwarranted and that there was insufficient evidence to authorize such a charge. There was evidence that the accused together with another who was jointly indicted with him were observed by the victim occupying an automobile stopped near where her car was parked when she came out of the Upson County Hospital late at night to go home; that the automobile followed her automobile to a point near the victim's home; that the driver thereof bumped the victim's car from the rear, causing it to be driven in the ditch; that the victim alighted from the automobile and fled, but was chased and overtaken by the accused's companion, dragged back to the automobile which was driven by the accused, and that the automobile with the victim and the co-indictee was driven by the accused to a secluded spot where the forcible rapes were perpetrated on the victim. This evidence was clearly sufficient to authorize a charge on the theory of conspiracy. Jackson v. State, 225 Ga. 39, 44, 165 S.E.2d 711.
6. While counsel for...
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