McNabb v. State

• Decision Date: 29 September 1943
• Docket Number: 30068.
• Parties: McNABB v. STATE.
• Court: Georgia Court of Appeals

27 S.E.2d 246

69 Ga.App. 885

McNABB v. STATE.

No. 30068.

Court of Appeals of Georgia, Division No. 1.

September 29, 1943

The denial of a new trial was not error.

James R. Venable and Frank A. Bowers, both of Atlanta, for plaintiff in error.

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

BROYLES Chief Judge.

J. H McNabb was convicted of the offense of burglary. The indictment also charged that previously he had been convicted of two other felonies and sentenced in each of those cases to confinement and labor in the penitentiary. One of those cases was the larceny of an automobile, and the other was unlawfully possessing burglary tools. On the trial now under review the prosecution introduced in evidence certified copies of the record of defendant's previous convictions and sentences, which showed also that both convictions and sentences occurred before the commission of the burglary for which the defendant was then on trial.

In special grounds 5 and 6 of the motion for new trial, the admission in evidence of the above-mentioned records is assigned as error on the ground that they would put "the defendant's character in issue and be in violation of both the State and Federal constitutions, which would deprive the defendant of a trial by an impartial jury, therefore being inadmissible and incompetent." The grounds are without merit. "If any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted." Code, § 27-2511. This section of the code "does not violate paragraph 5 of section 1 of article 1 of the Constitution of this state, which guarantees to one accused of crime an impartial trial. The general rule is that, in a prosecution for a particular crime, proof and allegations of another crime wholly independent from that for which the defendant is on trial, even though it be a crime of the same nature, are irrelevant and inadmissible; but to this rule there are exceptions. Williams v. State, 152 Ga. 498, 521, 110 S.E. 286. One of these exceptions is where the grade or punishment of the second offense is made by statute different from that of a first offense [but] the fact of a former conviction and sentence must be charged in the indictment, where a second conviction would affect the grade of the offense or require the imposition of a different punishment." Tribble v. State, 168 Ga. 699(2 3), 148 S.E. 593, 595.

A ground of the motion for new trial assigns error on the refusal of the court to grant a continuance of the case on the ground of the absence of two of the witnesses of the defendant. Upon the hearing of the motion it appeared that neither of said witnesses was under subpoena. Therefore, the movant had failed to meet one of the essential requirements of the Code, § 81-1410, and this court can not hold that the court abused its discretion in denying the motion. Williams v. State, 69 Ga. 11(3); Morris v State, 66 Ga.App. 37, 16 S.E.2d 908. ...