Shaw v. State, 32486
| Decision Date | 08 September 1977 |
| Docket Number | No. 32486,32486 |
| Citation | 239 Ga. 690,238 S.E.2d 434 |
| Parties | James Tony Hugh SHAW, Sr. v. The STATE. |
| Court | Georgia Supreme Court |
Johnson & Fain, Don W. Johnson, Dalton, for appellant.
Samuel J. Brantley, Fr. Dist. Atty., Charles A. Pannell, Jr., Dist. Atty., Patricia J. Craft, Asst. Dist. Atty., Dalton, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
The appellant, James Tony Hugh Shaw, Sr., was convicted of murder by a Whitfield County Superior Court jury. He was sentenced to life imprisonment. In this appeal, he enumerates as error the trial court's rulings on three of his pre-trial motions. After a careful review of the record, we affirm the conviction.
During the May Term of 1976, the Whitfield County Grand Jury returned a true bill of indictment charging the appellant with murder. The case was called for trial on August 30, 1976. A jury was selected, but it was never sworn, by having the oath administered to it. Preliminary instructions were given by the judge, who then excused the jury. On the next court day, the District Attorney entered a motion for continuance stating that he had just learned that a key witness for the State was to be hospitalized in Atlanta that afternoon, and was expected to be in the hospital for one week. The District Attorney stated that the witness' testimony was material to his case; that he had no prior knowledge of the witness' condition; that the witness was not absent with his permission; and that his motion had not been made for the purpose of delay. The court granted the motion and the jury was dismissed.
Prior to appellant's trial on October 18, 1976, appellant filed several motions, including a plea in bar, a dismissal of the indictment and disqualification of the District Attorney. All three motions contained allegations of prosecutorial misconduct in connection with the District Attorney's motion for continuance. The motions were denied. The trial proceeded. The jury returned a verdict of guilty of murder.
1. Appellant complains that the trial court erred in sustaining the State's demurrer to his plea in bar. In his plea in bar, appellant alleged that the District Attorney intentionally and unjustly prevented him from being tried by the jury first selected in his case by its motion for continuance, and that the trial court, by granting said motion, denied him his constitutional right against double jeopardy.
Contrary to appellant's contentions, the record shows that the State filed a traverse to appellant's plea in bar as well as a demurrer to the plea in bar. Therefore, the case of Ruffin v. State, 29 Ga.App. 214(2), 114 S.E. 581, has no application to this case.
A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974). Code Ann. § 26-507. The record shows that the first jury selected in this case was never administered the oath, and thus, was never properly sworn such that jeopardy would attach. Because the jury was not sworn and jeopardy had not attached, the trial court's grant of a continuance could not be considered a "provoked mistrial" as appellant contends. Appellant's argument that he was placed in jeopardy twice is without foundation in law or fact, and has no merit.
All applications for continuance are addressed to the sound discretion of the court and shall be granted or refused as the ends of justice may require. Foster v. State, 213 Ga. 601, 100 S.E.2d 426 (1957); Code Ann. § 81-1419. A ruling by the trial court on such a motion may be disturbed on appeal only if there has been an abuse of discretion. Smith v. State, 235 Ga. 620, 221 S.E.2d 41 (1975).
The record shows that a continuance in this case was granted because of the hospitalization of a key witness, material to the State's case. The trial court ascertained that the witness was in fact absent; had been subpoenaed; did have testimony material to the case; was not absent by permission; and would be able to appear at a later date. Under this set of facts, we find no abuse of the trial court's discretion in granting a...
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Potts v. State
...was not sworn, jeopardy did not attach, and there was neither a mistrial, nor anything "tantamount" to a mistrial. Shaw v. State, 239 Ga. 690(1), 238 S.E.2d 434 (1977). Hence, Potts' double jeopardy claim is without merit. Moreover, although we need not decide whether the court would have b......
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