Stynchcombe v. Clements
| Decision Date | 29 January 1971 |
| Docket Number | No. 26254,26254 |
| Citation | 179 S.E.2d 917,227 Ga. 244 |
| Parties | Leroy STYNCHCOMBE v. David Hugh CLEMENTS. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The trial court erred in granting the petitioner-appellee a new trial because of the charge on alibi.
Lewis R. Slaton, Dist. Atty., Carter Goode, Tony H. Hight, Atlanta, for appellant.
Kelly Brown, Walter M. Henritze, Jr., Atlanta, for appellee.
For review here is a judgment granting a new trial to a petitioner in a habeas corpus proceeding because of a charge to the jury on the subject of alibi.
The petitioner, David Hugh Clements, filed his petition in the Superior Court of Futlon County against the respondent, Leroy Stynchcombe, as sheriff of that county, alleging insofar as necessary to recite here that his detention is illegal and is because of his conviction and sentence for the offense of robbery; that he appealed to this court, which affirmed his conviction in Clements v. State, 226 Ga. 66, 172 S.E.2d 600; and that his conviction and sentence were imposed in violation of the due process guaranty of the Fourteenth Amendment of the United States Constitution in that the trial court erroneously charged the jury as to alibi in stated particulars.
To this petition the respondent sheriff filed an answer which denied the essential allegations.
The judgment granting the petitioner a new trial is the basis of the appeal filed by the respondent.
1. The petitioner-appellee has moved to dismiss the appeal upon the ground that the period of approximately four months from the order granting the new trial until the filing in this court of the record of proceedings constituted a stale appeal. For support of this he contends that the respondent-appellant applied for and obtained three extensions of time to file a transcript of the evidence and proceedings, whereas in fact the trial judge thereafter certified that no evidence was admitted upon the habeas corpus trial.
This motion must be denied. From what appears from a subsequent certificate of the trial judge and later affidavits of the court reporter and the assistant district attorney representing the respondent-appellant, this delay was not caused by the respondent-appellant. Rather, these documents show that the time elapsed due to the difficulty encountered in completing the record for the appeal. This involved the court reporter's efforts to locate his notes of the proceeding, which contained a stipulation of the parties made at the hearing. It also involved efforts to locate the attorney who represented the petitioner-appellee at the habeas corpus hearing so that he could agree as to the contents of the stipulation. In substance this stipulation was that since neither party introduced any evidence and since only arguments of counsel were heard, the court reporter would not be required to record the proceedings further. When it conclusively appeared that the notes and the attorney could not be located, the trial judge then validated the stipulation as to no evidence and hence no necessity for transcript.
2. We come now to a consideration of the appeal itself.
Due to denials in the pleadings and lack of evidence, as referred to in Division 1, some difficulty has been encountered in ascertaining what transpired upon the trial of the original case which was appealed to this court. Clements v. State, 226 Ga. 66, 172 S.E.2d 600, supra.
However, this court has held that it may take judicial cognizance of the contents of records in other cases on file in this court. Baker v. City of Atlanta, 211 Ga. 34, 35, 83 S.E.2d 682; Ammons v. Central of Georgia...
To continue reading
Request your trial
-
Parrish v. Hopper
...Martin v. Smith, 227 Ga. 668, 182 S.E.2d 443 (1971), Montgomery v. Smith, 227 Ga. 601, 182 S.E.2d 316 (1971), and Stynchcombe v. Clements, 227 Ga. 244, 179 S.E.2d 917 (1971) are similarly B. Waiver The Georgia Habeas Corpus Statute With Shoemake out of the way, what is presented by Parrish'......
-
Holcomb v. State
...of Judge Hall in Tant v. State, 123 Ga.App. 760, 764, 182 S.E.2d 502; Lee v. Smith, 227 Ga. 503, 181 S.E.2d 364; Stynchcombe v. Clements, 227 Ga. 244, 179 S.E.2d 917; Smith v. Hightower, 227 Ga. 144, 179 S.E.2d 242 and 3. At the time of the robbery in DeKalb County, Georgia, the defendant l......
-
Bassett v. Smith, 26482
...177 S.E.2d 230; Thornton v. State, 226 Ga. 837(3), 178 S.E.2d 193; Smith v. Hightower, 227 Ga. 144, 179 S.E.2d 242; Stynchcombe v. Clements, 227 Ga. 244, 179 S.E.2d 917; Hart v. Smith, 227 Ga. 357, 180 S.E.2d Judgment affirmed. All the Justices concur. ...
-
Hart v. Smith, 26341
...177 S.E.2d 230; Thornton v. State, 226 Ga. 837(3), 178 S.E.2d 193; Smith v. Hightower, 227 Ga. 144, 179 S.E.2d 242; Stynch Combe v. Clements, 227 Ga. 244, 179 S.E.2d 917. Judgment All the Justices concur, except FELTON, J., who concurs specially. ...