Sheppard v. State, (No. 6023.)

• Decision Date: 11 January 1928
• Docket Number: (No. 6023.)
• Citation: 141 S.E. 196,165 Ga. 460
• Parties: SHEPPARD . v. STATE.
• Court: Georgia Supreme Court

165 Ga. 460

141 S.E. 196

SHEPPARD .

v.STATE.

(No. 6023.)

Supreme Court of Georgia.

Jan. 11, 1928.

(Syllabus by the Court.)

Gilbert, J., and Beck, P. J., dissenting.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

R. H. Sheppard was convicted of murder, and he brings error. Reversed.

On February 22, 1927, an indictment against R. H. Sheppard was returned, alleging that on February 19, 1927, he did kill and murder Homer Fowler by striking, hitting, and beating said Fowler with an ax. The case was called for trial on March 9, 1927. The state announced ready for trial. The defendant appeared without representation, whereupon the court appointed C. J. Graham and W. B. Knight as counsel for him. The counsel moved for a continuance in order that they might have time to "look into said case and prepare a defense for the defendant, but the court overruled said motion for a continuance, and ordered the case to go to trial, and immediately proceeded to impanel a jury, and on the following morning the state introduced evidence, but the defendant introduced no evidence, with the exception of his own statement, not under oath." The quotation is from the bill of exceptions. The jury returned a verdict finding the defendant guilty of murder, without recommendation. He moved for a new trial upon the usual general grounds, and by amendment added two grounds, complaining that the court erred in not granting, upon motion, sufficient time to allow counsel to consult with the defendant and ascertain the material witnesses necessary for his defense, if any, and in ordering counsel to proceed immediately with the trial, allowing defendant "only time from the adjournment of the court late in the afternoon until early the next morning within which to prepare a defense." The judge passed an order as follows:

"The motion for new trial, as amended, coming on for a hearing, and it appearing (with reference to the amended grounds) that court recessed on March 9, 1927, at 1 o'clock p. m., after striking the jury in said case, and allowed counsel until 9 o'clock next morning to subpoena any witnesses they might deem necessary, placing bailiffs at their disposal for that purpose, and it not having appeared the following morning that any material witness was absent, and it not appearing now that any material witness was absent at said trial, and it appearing that the evidence was amply sufficient to support the verdict rendered, the motion for new trial is hereby overruled."

The defendant excepted.

The evidence in behalf of the state was to the effect that the defendant and Roy Fowler came with Homer Fowler, the deceased, to a three-room house on Marietta street, in Atlanta, on the afternoon of the day the deceased was assaulted; that they stood around the fire in the house for a few minutes, and then went out into the back yard of the house, where they stayed for about 30 minutes, and then returned to the house. The defendant asked Homer Fowler to lend him $3, but Fowler "just grunted" and didnot reply. The three men then went into the middle room, and left the two women occupants of the house in the front room, with a man who had come to the house since the arrival of the defendant and Homer Fowler. After a few minutes of conversation between the men in the middle room, the subject of which is not disclosed, Sheppard, the defendant, picked up an ax from the corner of the room, ran one man out of the house, and then declared that he was going to kill the ———— damn son of a ————, and struck Homer Fowler a blow on the side of the head, knocking him to the floor unconscious. The defendant then ran out of the house, but immediately returned and again struck Fowler with the ax. There was no difficulty prior to the striking of the blow, and Fowler made no attempt to attack the defendant, but "was standing up at the window; he didn't have anything in his hands; he wasn't doing anything or trying to hurt anybody; he was just standing up there, drunk." Homer Fowler had been seen with a large roll of money the afternoon and night of the day before the homicide occurred, but had none in his pockets when searched after the assault. Immediately after the defendant left the house where Fowler was struck he endeavored to engage some one to drive him to Marietta, 20 miles distant, and displayed a large sum of money. He was arrested before he could get away. He vigorously resisted arrest, being finally subdued and arrested by the combined efforts of four policemen.

In his statement the defendant said that on the afternoon of the homicide he was in the house, lying on the bed, when Fowler came in and declared that he wanted "to cut his ————damn head off"; that he raised up and told Fowler he was taking in too much territory, and walked over towards him, and when he did so Fowler struck him with a blackjack and knocked three of his teeth out; that he nearly knocked defendant down, but he caught on the wall; that Fowler then came at him with a knife, but he knocked him off, and hit Fowler, and knocked his head up against the jamb of the chimney. He knew nothing about any ax. His statement as to the circumstances of the assault were directly contradicted by the state's witnesses introduced in rebuttal. The physician who, examined Fowler when he was brought to the hospital testified that Fowler was unconscious, breathing very heavily, suffering from a fractured skull, and both cheek bones caved in; that his face was considerably bruised and bloody all over; and that from the nature and extent of the injuries it was the opinion of witness that the wound could not have been inflicted by a bare fist.

W. B. Knight and Chas. J. Graham, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., E. A. Stephens, and J. W. Le Craw, all of Atlanta, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

RUSSELL, C. J. [1, 2] "All applications for continuances are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused, as the ends of justice may require." The same rule of discretion as Is applicable in cases of continuances undoubtedly likewise applies where there is no motion for a continuance, but merely a request for postponement. We think the very able and learned judge who presided in the trial of this case erred in treating the request or motion made by counsel for the accused as if it had been a motion for a continuance, in which the law requires a strict showing of specific facts, as detailed in several of the Code sections upon the subject of continuances. It Is true that in the order of the court it is referred to as a request for a postponement, and we so construe the request which was presented in the instant case; but at the time the court passed upon the request the question of providing the accused with all witnesses necessary for his defense was apparently uppermost in the mind of the court, and he went even further than did the trial judge in the case of Kelloy v. State, 151 Ga. 551, 107 S. E. 488, by tendering to the counsel for the accused all necessary force to bring into court any witnesses they might desire. In the order of the court it is further said that it did not appear the next morning, when the trial was to be had, that any witnesses were absent, nor had it been made to appear on the hearing of the motion for a new trial that there were any witnesses who were absent.

While the law, in considering the exercise of the court's discretion as to a requested postponement, where a continuance is not asked, cannot fix any definite time which should be allowed by the court upon a request of appointed counsel for time in which to prepare a defense, we are of the opinion that under the facts of this record counsel should have been given at least one entire day for the purpose. It is inferable from the record that the accused was a stranger to the counsel who were appointed to defend him. Assuming, without deciding, that the evidence for the state presented an outrageous murder, and that the defendant could have secured no witnesses, still there would have been imposed upon the counsel appointed by the court the duty (which be it said the profession has always performed with the utmost fidelity) of defending this court-imposed client to the utmost of their ability. It might be that more time for preparation and conference with some of the state's witnesses would have adduced facts tending to prove that the defendant was not of soundmind. But if counsel, after having time for an examination of the case, were impelled by duty to admit the guilt of the accused, they would still have the right to plead with the jury (for any reason which might appeal to them) to save the accused from the electric chair, and instead commit him to the penitentiary for life.

Benefit of counsel either means something or it means nothing. To promise the benefit of counsel and then render the service ineffective is, as Judge Blandford once remarked (Blackman v. State, 76 Ga. 288), "to keep the word of promise to our ear and break it to our hope." The intense strain involved in the responsibility of defending one whose life is at stake is such as can scarcely be described in words, and altogether aside from inquiry into the facts of the case, and legitimate inquiry so far as possible into the character of the jurors, as much time and thought are required to consider and determine what course of action shall be pursued in defending one whose life is at stake as in important civil cases, where many thousands of dollars are involved. "Peremptorily forcing one indicted for a criminal offense to trial immediately after the appointment of counsel (.who was not familiar with the case) to defend him, without giving to such counsel an opportunity to make an investigation of the case or prepare for the defense, is, although no other ground for a postponement or continuance of the...