Spurlin v. State
| Decision Date | 26 May 1966 |
| Docket Number | No. 23459,23459 |
| Citation | 149 S.E.2d 315,222 Ga. 179 |
| Parties | Ralph SPURLIN v. The STATE. |
| Court | Georgia Supreme Court |
Franklin S. Chalmers, Atlanta, for appellant.
Lewis Slaton, Sol. Gen., J. Walter LeCraw, Asst. Sol. Gen., Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Ralph Spurlin, Charles Harper, James Evans and Denny Pressley were jointly indicted in Fulton County for robbery. The indictment alleges that they did by use of an offensive weapon, a pistol and by intimidation, take from the person of James M. Haynes $6,713, property of the person so robbed. Spurlin was tried separately, convicted of robbery by use of an offensive weapon and was sentenced to serve a prison term of 20 years. He timely moved for a new trial on the usual general grounds, later amended his motion by adding other grounds and from a judgment denying him a new trial, appealed to this court. Held:
1. Art. VI, sec. XIII, par. II of the Constitution of 1945 was amended in 1958 (Ga.L.1958, p. 491) so as to authorize superior court judges emeritus to serve and preside in the superior courts of this State. Code Ann. 2-4802. The amendment however provides that the General Assembly shall prescribe the method and manner in which they may be called on for temporary service. Pursuant to the power conferred by this amendment, the legislature passed an Act in 1962 (Ga.L.1962, pp. 547, 548) which authorizes any superior court judge of this State to request in writing a superior court judge emeritus of his circuit, or any adjoining circuit, to serve and preside in the superior court of any county in his circuit. The Act provides that a superior court judge in making such request shall specify the time, place and duration of the requested service and shall file a copy of the request or order in the office of the clerk of the superior court of the county in which such service is to be performed. Code Ann. § 24-2621a. The appellant was tried and convicted in the Superior Court of Fulton County. Honorable Samuel J. Boykin, Superior Court Judge Emeritus of the Coweta Judicial Circuit, presided over and conducted his trial. Appellant contends and argues that his conviction is illegal and void and for that reason should be set aside because the enabling Act of 1962 fails to follow the constitutional amendment and provide for only temporary service of such superior court judges emeritus. The attack made on such Act is without merit. The Act expressly provides that a superior court judge in requesting the service of a superior court judge emeritus 'shall specify therein the time, place and duration of such services and shall file a copy of such request or order in the office of the clerk of the superior court of the county in which such services are to be performed.' This language of the Act follows the aforementioned constitutional amendment and limits the power of superior court judges to request temporary service only of superior court judges emeritus. See Adams v. Payne, 219 Ga. 638, 135 S.E.2d 423. On February 23, 1965, Chief Judge Virlyn B. Moore, one of the superior court judges of the Atlanta Judicial Circuit, requested Honorable Samuel J. Boykin, Superior Court Judge Emeritus of the adjoining Coweta Judicial Circuit, to preside and serve in the Superior Court of Fulton County during the March-April term, 1965, of that court and Judge Moore's order was filed with and recorded by the Clerk of the Superior Court of Fulton County as required by the Act of 1962. In these circumstances we hold that Superior Court Judge Emeritus Boykin was legally authorized to preside and serve in that court for the time specified in Judge Moore's order and to try the case against this defendant which was then pending in that court.
2. Before the introduction of evidence began, the defendant invoked the rule of sequestration as provided for by Code § 38-1703. The solicitor general asked the court to allow Lt. R. F. Jordan, a detective in charge of the fugitive squad of the Atlanta Police Department and a witness for the State, to remain in the courtroom during the trial to assist him in the prosecution of the case, stating as his reason therefor that Jordan, as such officer, had investigated the case and was familiar with the facts upon which the State expected to rely. The request was granted, and Jordan was allowed to remain in the courtroom and to testify after other witnesses for the State had been examined in his presence. The defendant enumerates this as error. As to this, the trial judge had discretionary power to grant or refuse the solicitor's request and, in the circumstances of this case, we will not hold that he abused his discretion. See Justice v. State, 213 Ga. 166, 97 S.E.2d 569, and the cases there cited which include Poultryland, Inc. v. Anderson, 200 Ga. 549, 562, 37 S.E.2d 785, 793, where it was said by a full bench that 'the rule fixed by the Code of 1863, § 3787, and continued in all subsequent Codes, as to the sequestration of witnesses, conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case.' And what we have here held is also sustained by the decisions of this court in May v. State, 90 Ga. 793(2), 17 S.E.2d 108; Ledford v. State, 215 Ga. 799(3), 113 S.E.2d 628; Cornett v. State, 218 Ga. 405(2), 128 S.E.2d 317; and Dye v. State, 220 Ga. 113 (2), 137 S.E.2d 465.
3. During the trial the State offered as evidence a statement signed by Charles Harper and James Evans, coindictees with the defendant, in which they admitted their participation in this robbery and several others but in which they refused to name others who participated therein. The defendant enumerates this as error. The record, however, shows that the accused, when this statement was offered in evidence, stated to the court that he had no objection to its introduction provided all of it was read to the jury. It was then allowed in evidence and the solicitor general read all of it to the jury. In these circumstances, no reversible error is shown.
4. When Henry O. Gresham, a witness for the State was called to the witness stand and before he was questioned by the solicitor general, counsel for the accused made the following motion: His motion was overruled. In response to...
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...average juror for which no further definition need be given in the absence of a request-and there was no request here. Spurlin v. State, 222 Ga. 179, 182, 149 S.E.2d 315; Hammond v. State, 212 Ga. 186, 91 S.E.2d 615; Campbell v. State, 144 Ga. 224, 87 S.E. 277; Elder v. State, 143 Ga. 383, ......
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