Starr v. State, 17896
| Decision Date | 14 July 1952 |
| Docket Number | No. 17896,17896 |
| Citation | 209 Ga. 258,71 S.E.2d 654 |
| Parties | STARR v. STATE. |
| Court | Georgia Supreme Court |
Hicks & Culbert, Rome, for plaintiff in error.
John W. Davis, Sol. Gen., Summerville, Eugene Cook, Atty. Gen., J. E. Hyman, Rubye G. Jackson, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
Jesse Starr was convicted of rape, without recommendation, in Floyd Superior Court. To the judgment overruling his amended motion for a new trial he excepts. Held:
1. The record disclosing that counsel for the defendant were appointed on August 23, 1951, that they first conferred with the defendant on August 28, 1951, and that he was put upon trial on September 4, 1951--it does not appear that the trial court abused its discretion in overruling the motion for continuance made by counsel for the defendant upon the ground that 'we of appointed counsel have not had sufficient time to investigate the facts of this case and prepare it adequately to give the defendant an adequate trial.' The motion for continuance does not disclose the absence or inaccessibility of any witnesses who would have testified to anything favorable to the defendant, or that by the granting of additional time and other evidence favorable to the defendant could have been procured, or any other fact showing that the defendant was injured or prejudiced by the refusal to grant a continuance. 'The time and opportunity which counsel has had to prepare for trial is within the sound discretion of the trial judge and will not be interfered with unless abused.' Porch v. State, 207 Ga. 645, 63 S.E.2d 902; Harris v. State, 119 Ga. 114, 45 S.E. 973; Moore v. State, 202 Ga. 357, 43 S.E.2d 251; Smith v. State, 198 Ga. 849(1), 33 S.E.2d 338; Cannady v. State, 190 Ga. 227, 9 S.E.2d 241; Griffin v. State, 208 Ga. 746(2), 69 S.E.2d 192.
2. Code Ann.Supp. § 59-705, which provides that both the State and the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge, contains no requirement as to when such examination of the juror by the defendant in criminal cases shall be made, except that it shall be conducted after the usual voir dire questions have been put by the court. Whether the examination of the individual juror by the defendant shall be made before or after the juror has been placed upon him by the State is a matter within the discretion of the trial judge. In the present case no abuse of that discretion is disclosed by the ruling, complained of in the second ground of the amended motion for a new trial, denying the request of counsel for the defendant 'that the juror be put upon the prisoner before we are required to ask any of our qualifying questions.' No harm to the defendant is shown to have resulted because of the ruling here complained of, since it is now shown that his counsel were prevented from asking any juror any question they desired touching any of the matters referred to in this Code section. It is entirely possible that such examination of the juror by the defendant would disclose the disqualification of the juror for cause, in which event he would be excused without required the State to determine whether to exercise its right to a peremptory challenge.
2. 'Where on a trial for rape the court ruled out certain evidence which was objected to by counsel for defendant, it was not error that the court failed to instruct the jury that they were to disregard the testimony ruled out.' Annunciatio v. State, 176 Ga. 787(2), 169 S.E. 3. Under the foregoing ruling, the third ground of the amended motion for a new trial is without merit.
4. Even though the ruling complained of, in the fourth ground of the amended motion for a new trial, in admitting the testimony of the witness therein referred to could be held to be erroneous, it was rendered harmless when the trial court thereafter, on motion of counsel for the defendant, excluded all of the testimony of this witness.
5. The fifth ground of the amended motion for a new trial assigns error on the overruling by the trial court of the following motion of counsel for the defendant: ...
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