Simmons v. State

• Decision Date: 13 November 1902
• Citation: 116 Ga. 583,42 S.E. 779
• Parties: SIMMONS. v. STATE.
• Court: Georgia Supreme Court

42 S.E. 779

116 Ga. 583

SIMMONS.

v.STATE.

Supreme Court of Georgia.

Nov. 13, 1902.

HOMICIDE—TRIAL —POSTPONEMENT — ABSENT WITNESSES—CONFESSIONS—INSTRUCTIONS.

1. Postponements of trials rest in the sound discretion of the trial judge. It does not appear that this discretion was abused in the present case.

2. Where, upon the call of a criminal case to be set for trial, the accused being unable to employ counsel, the court appointed a "junior and inexperienced member of the bar" to represent him, and upon, the trial, and before the same was entered into, the court, ex mero motu, appointed an "attorney of experience and ability" to aid in the defense, and both of the attorneys represented the accused throughout the trial, he had "the privilege and benefit of counsel, " as guarantied him by the constitution of this state.

3. Even if a failure to charge upon the law of confessions, in the absence of a request to so charge, be cause for a new trial, the evidence in the present case did not authorize a charge on the subject.

4. The verdict is amply supported by the evidence, and is not contrary to law.

(Syllabus by the Court.)

Error from superior court, Chatham county; Pope Barrow, Judge.

Robert Simmons was convicted of murder, and brings error. Affirmed.

Simon N. Gazan, John E. Myrick, and Edwin Leffler, for plaintiff in error.

W. W. Osborne, Sol. Gen., and Boykin Wright, Atty. Gen., for the State.

FISH, J. It appears from the record in this case that the homicide for which theaccused, Robert Simmons, was tried, occurred on Thursday, July 24, 1902. The bill of indictment charging him with murder was returned on July 25th. On Saturday, July 26th, the accused was brought into court, and, as he had no counsel, the presiding judge appointed counsel to represent him, and at the same time, and in the presence of, and without objection by, such counsel, set the case for trial on the following Thursday, the 31st day of July. On the date last mentioned the case was called for trial, and counsel for the accused asked that the same be postponed, on the ground that he had not had time to prepare the case for trial; stating that the accused had some witnesses "living two or three miles out on the Louisville road, " whose testimony he desired to use, but whose names counsel did not know. The judge asked the accused if he could give him the names of the witnesses desired, at the same time offering to have them brought into court. The accused replied that he did not know their names. The court then asked the accused if he had any witnesses who were not present whose testimony he desired, to which the accused replied that he did not know. Complaint was made in the motion for a new trial that the counsel first appointed to represent the accused was "young and inexperienced, " but in connection with this ground of the motion the trial judge certifies that, before the trial was entered upon, the court appointed additional counsel to assist in the defense of the accused, and that after such appointment, and further consultation between the accused and his counsel, the trial was begun without further motion for a continuance or postponement The trial resulted in a verdict of guilty, and to the overruling of his motion for a new trial the accused excepted.

1. The time to be allowed counsel to prepare for trial is in the sound discretion of the trial judge, which discretion will not be interfered with by this court unless abused. Charlon v. State, 106 Ga. 400, 32 S. E. 34T; Baker v. State, 111 Ga. 141, 36 S. E. 607. In view of the facts of this case as above stated, there was no abuse of discretion in refusing to postpone the trial. If the accused had any witnesses who were absent, it was not shown that he knew their names or where they resided, or what they would testify to if present, or that their presence could be secured if the case should be postponed. It did not appear that there were any unusual or intricate matters of law or fact involved in the case. The trial judge knew the facts as to the business in which counsel had been engaged in his court, and could better determine the propriety of a postponement of the trial than this court. it follows that the court did not abuse its discretion in refusing the postponement.

2. It appears from the recitals in the motion for a new trial that the counsel who was first appointed to represent the accused was "a junior member of the bar, Inexperienced and unskilled in the trial of cases; that he had never tried but one case before a jury"; and that he was admitted to the bar only a little more than a...