McKenzie v. State

• Decision Date: 08 March 1945
• Docket Number: 30665.
• Citation: 33 S.E.2d 539,72 Ga.App. 208
• Parties: McKENZIE v. STATE.
• Court: Georgia Court of Appeals

33 S.E.2d 539

72 Ga.App. 208

McKENZIE v. STATE.

No. 30665.

Court of Appeals of Georgia, Division No. 1.

March 8, 1945

Rehearing Denied March 26, 1945.

Syllabus by the Court.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

GARDNER J., dissenting.

Willis Smith, of Carrollton, and Judson Andrews and E. A. Wright both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., Durwood T. Pye, and Reuben A. Garland, all of Atlanta, for defendant in error.

PER CURIAM.

The defendant was convicted of sodomy by having connection with another male against the laws of nature.

In the first special ground of the motion for new trial the defendant contends that 'the court erred in the trial of said case, and during the trial of the same, in refusing to continue the case for a reasonable length of time on account of the absence of his leading counsel, Willis Smith. The following motion having been made: Mr. Andrews (Assistant counsel for the defendant): 'If the court please, I wish to make a motion to continue the case because Mr. Smith, who is leading counsel in the case, has been injured in an automobile accident and is not able to appear.' Wilbur McKenzie, called as a witness in regard to the motion, testified (direct examination): 'My name is Wilbur McKenzie. I am the father of the defendant on trial, W. O. McKenzie. I employed an attorney to defend my son in this case, Col. Willis Smith of Carrollton. He was in court yesterday, and I have not seen him since, and I am informed that he was injured on the way home. I have not discussed the case with you, Mr. Andrews' (cross examination): 'I was ready to go on trial yesterday. I was informed that he was injured in a wreck. He is not present here this morning.' Mr. Andrews: 'I would like to add that I have not talked to a single witness in this case, and I have only been employed as associate counsel. All I know about Mr. Smith's condition is what I was told by a young lady in his office in Carrollton, that he would not be able to come to court to-day on account of an accident that he had going home.' The court: 'The court will have to hold that you have not made a sufficient showing with reference to Mr. Smith's illness, Is there any other evidence?' Mr. Andrews: 'No, sir.' The court: 'The motion is overruled and the case shall go on trial.' Mr. Andrews: 'If the court please, I would like to make an additional motion. The motion is for delay that I may get some evidence from the government in regard to this man's mental condition. I have no evidence to present to the court as to his mental condition, and I want to get a record in regard to his insanity. I would like to prove that, if the evidence is available and present it at this time.' Wilbur McKenzie recalled. (direct examination): 'I just could not say whether Mr. Smith has some records from the government showing the mental condition of this boy--he has a record of his discharge from the army, but I don't know what other records he has.' Mr. Garland: 'If the court please, we object to that as irrelevant and immaterial.' (The matter was then discussed at some length.) Mr. Andrews: 'If the court please I would like to be sworn and make a statement.' The court: 'Very well.' Judson Andrews being sworn testified as follows: 'If the court please, Mr. Smith had in his records on yesterday a certified copy of the records of the ordinary's court of Carroll County as to the mental condition of this party, and I have not got any evidence in hand this morning. He also had a certified copy of the discharge from the army of the defendant, as to that I could not state as to its admissibility or whether it is proof of his mental condition.' The court: 'I will overrule the motion and let the case proceed. I want to make a statement as to what happened yesterday morning in connection with this matter. The case was called for trial in Monday, June 19th, Mr. Smith of Carrollton made a motion that the case be not called for trial on that day and the State made a motion that the case be set down for Tuesday. Mr. Smith also requested that the case be set down for Wednesday instead of Tuesday. The case was set down for Tuesday apparently with the acquiescence of Mr. Smith. The court is now of the opinion, in so far as the motion for continuance on account of Mr. W. O. McKenzie's (defendant's) condition is not now pending. I have heard the motion for the defense at the present time in reference to absence of Counsel for the defendant and I have overruled the motion.'

'The affidavit of Willis Smith, counsel for defendant, now movant, is hereto attached and made a ground of the amended motion for a new trial, together with the affidavit of Miss Lillian Teal, his secretary. Said affidavits being marked 'Exhibit A' and 'B' respectively, and made a part of this motion for a new trial; and movant contends that the court committed reversible error, and the same was harmful to the defendant, now movant, in not continuing the case for a reasonable length of time until his leading counsel, the only counsel who had conferred with any of the witnesses in the case, or who had made preparations in the trial of the case, to recover from his illness. The alleged offense having been committed on the first day of June, 1944, and the defendant indicted on June 2, 1944, the case set down for trial on the 19th day of June, 1944, and the case had not been continued by the defendant or his counsel, except that the judge had continued it from Monday, June 19th, to Tuesday, June 20th, and movant insists that it was error, harmful and prejudicial, not to continue the case for a reasonable length of time, or even a few days until his leading counsel could have been present to conduct the trial of said case; and the refusal to continue the case and to force him to trial without his leading counsel, but with an attorney who knew absolutely nothing about the case, was harmful and injurious to him, and as movant insists was reversible error. It was further error to refuse to continue the case for a reasonable length of time for the reason that the leading counsel for the defendant had in his possession a certified copy of the court of ordinary adjudicating the defendant insane, and there was no way for Mr. Andrews, the associate counsel, to obtain this evidence and present it to the court and jury.'

The affidavit of leading counsel, Willis Smith, referred to as being attached to this special ground of the motion for new trial, omitting the formal part, is as follows: 'Affiant says that on or about the 14th or 15th day of June, 1944, he was employed by the father of the defendant to represent the defendant in Fulton Superior Court. That he had prepared the case for trial personally the best he could for the short length of time he had. That on June 19th he went to Atlanta when the case was assigned for trial before Judge Hooper. That he had a showing for continuance on the ground that the defendant was insane, as was shown by the affidavits of two doctors. Said affidavits are hereto referred to and made a part of this affidavit. At the time, the defendant was not present but was at Carrollton, Georgia, under bond. The showing for continuance was overruled by the court, and the case checked for the following day, June 20th. Affiant requested the court to check it until the 21st day of June, which was refused. Affiant further says that he returned home on the afternoon on the 19th and became ill that night. That the next morning of June 20th he was still ill, but started to Atlanta in his automobile alone. After going a few miles that he grew much worse and had to return home. When he got home he found that Dr. Scales and Dr. Reese, witnesses for the defendant, and the defendant's after, had already gone to Atlanta and he had no way, or time, to get a certificate of a doctor or to send a certificate to Atlanta, and that he requested his secretary, Miss Lillian Teal, to call the judge, Mr. Hooper, or Mr. Andrews, whom he had associated in the case, and request them to continue the case for a day or so until he recovered sufficiently to try the case.' The affidavit of Miss Lillian Teal, omitting the formal parts, stated, 'that on the morning of June 20th, Willis Smith called her over the phone and requested her to call Judge Hooper or Mr. Judson Andrews and inform him he was ill and unable to go to Atlanta and attend court that day, and requested him to check the case for a day or two or until he had recovered sufficiently to try the case. Affiant says that she called Mr. Judson Andrews, and told him this.'

'A showing for a continuance on the ground of the absence and illness of leading counsel is not complete, under section 3525 [81-1413] of the Code, without a statement on oath that the application is not made for delay only.' Burnett v. State, 87 Ga. 622, 13 S.E. 552. 'A showing for a continuance upon the ground of the absence of a witness, is insufficient if it omits to state that the application is not made for the purpose of delay.' Newsome v. State, 61 Ga. 481. In the language of the trial judge 'the case was called for trial on Monday, June 19, 1944. Mr. Smith of Carrollton made a motion that the case be not called for trial on that day and the State made a motion that the case be set down for Tuesday. Mr. Smith also requested that the case be set down for Wednesday instead of Tuesday. The case was set down for Tuesday apparently with the acquiesence of Mr. Smith.'

If the defendant were insane at the time of the trial, the law provides a method of protecting him by a special plea of insanity, under which the court must determine his plea of insanity before he is even required to plead to the indictment....