New v. State
| Citation | 26 Ga.App. 5,105 S.E. 50 |
| Decision Date | 11 November 1920 |
| Docket Number | (No. 11633.) |
| Parties | NEW. v. STATE. |
| Court | Georgia Court of Appeals |
(Syllabus by Editorial Staff.)
Error from Superior Court, Gwinnett County; A. J. Cobb, Judge.
Fred New was convicted of robbery, his motion for a new trial was denied, and he brings error. Affirmed.
Richard B. Russell and R. R. Jackson, both of Atlanta, and Kelley & Kelley and R. N. Holt, all of Lawrenceville, for plaintiff in error.
W. O. Dean, Sol. Gen., of Monroe, and O. A. Nix and I. L. Oakes, both of Lawrenceville, for the State.
BROYLES, C. J. [1, 2] 1. Continuances for the absence of counsel are not favored. A strict showing is required, especially where competent counsel other than the absent counsel has been secured and it is not shown that the defendant was injured by the absence of his original or leading counsel. The discretion of the judge in refusing to continue a case on the ground of the providential absence on account of sickness of the defendant's leading counsel will not be controlled, when the record discloses that there was much evidence pro and con as to whether the absent counsel was really unable to attend court and what was his actual physical condition. Fletcher v. Collins, 111 Ga. 253, 36 S. E. 646 (7); Curry v. State, 17 Ga. App. 377, 87 S. E. 685, and cases cited. Under the above ruling and the facts of the instant case it does not appear that the judge abused his discretion in overruling the defendant's motion for a continuance.
2. Where a special ground of a motion for a new trial is not approved by the judge as true, but is approved with certain material qualifications, it will not be considered by this court.
"If the judge approve the ground of the amendment, without more, this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of the ground as true." McLean v. Mann, 148 Ga. 114, 95 S. E. 985(1), and citations; Griggs v. State, 17 Ga. App. 301, 86 S. E. 726, and citations.
Under this ruling the fifth special ground of the motion for a new trial cannot be considered.
3. The defendant (Fred New), Keith Nix, Tab Lowery, Fred Webb, and Olin New were jointly charged with robbing a bank in Duluth, Gwinnett county, on the 7th day of August, 1919. The defendant was tried separately, and upon his trial Fred Webb testified, in substance, as follows: That aboutthree months before the trial he met Nix, Lowery, and the defendant in Atlanta, and that Nix and the defendant asked him if he wanted to join them in robbing the bank in Lawrenceville, and that from then on they kept getting in touch with each other for the purpose of robbing that bank; that on the 6th day of August, 1919, about 7 o'clock in the morning, he, Keith Nix, Tab Lowery, and the defendant left Atlanta in a Cadillac Eight automobile and drove direct to Lawrenceville, the defendant driving the car; that before they reached Lawrenceville they stopped and the defendant blacked his face; that they then drove on to Lawrenceville, passed the bank, and drove around the town, stopping at one place and another, watching for an opportunity to rob the bank; that they finally decided there were too many people in the town for them to make the attempt, and agreed to go to Duluth and rob the bank there; that they accordingly left Lawrenceville, about 11 o'clock in the morning, and drove straight to Duluth; that they decided there was too big a crowd in Duluth, and that they would wait until the next day and rob the bank early in the morning; that they spent the night at Olin New's house, not far from Duluth; that the next morning they drove in the car to Duluth, but before they got there they stopped the car and the defendant blacked his face; that they drove up pretty close to the bank in Duluth, and that the defendant was driving the car; that Keith, Lowery, and the witness walked into the bank, pointed their pistols at the...
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