Terhune v. State, 43137

• Decision Date: 05 December 1967
• Docket Number: No. 43137,No. 2,43137,2
• Parties: W. B. TERHUNE v. The STATE
• Court: Georgia Court of Appeals

Page 291

159 S.E.2d 291

117 Ga.App. 59

W. B. TERHUNE v. The STATE.

No. 43137.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1967.

Rehearing Denied Dec. 20, 1967.

Certiorari Denied Feb. 13, 1968.

Fullbright & Duffey, Harl C. Duffey, Jr., Harris & Royal, Rome, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, George K. McPherson, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

BELL, P.J.

1. Defendant was convicted and sentenced for assault with intent to murder. The contention that the evidence demanded a finding that defendant was insane at the time the act charged against him was committed is without merit. See Graham v. State, 102 Ga. 650, 653, 29 S.E. 582; Boyd v. State, 207 Ga. 567, 569, 63 S.E.2d 394; Fields v. State, 221 Ga. 307, 308, 144 S.E.2d 339.

2. All applications for continuances are addressed to the trial judge's sound discretion, (Code § 81-1419), which will not be controlled except for flagrant abuse. Curry v. State, 17 Ga.App. 377(1), 87 S.E. 685 and citations. It was not an abuse of discretion to overrule defendant's motion for continuance based on the absence of a witness under the circumstances here. The case had been continued twice before because of the absence of the same witness and there was no showing that defendant expected he would be able to procure the witness at the next term of court. Further, it appeared that the witness' non-expert opinion as to the insanity of defendant would be merely cumulative of that of five other witnesses who were present and who testified for defendant on the same issue. See Huffman v. State, 95 Ga. 469(2), 20 S.E. 216; Johnson v. State, 155 Ga. 509, 511, 117 S.E. 434; Blount v. State, 18 Ga.App. 204(1), 89 S.E. 78; Hewitt v. State, 27 Ga.App. 676(2), 109 S.E. 679; Clarke v. State, 41 Ga.App. 556(1), 153 S.E. 616; Johnson v. State, 72 Ga.App. 534(1), 34 S.E.2d 555. The case of Ryder v. State, 100 Ga. 528, 531, 28 S.E. 246 is distinguishable in several respects. For one, in Ryder there was a detailed showing of peculiar facts on which the absent witnesses would base their opinions.

3. It was not error to refuse to give in charge defendant's written request as follows: 'All persons are presumed to be of sound mind and * * * the burden is upon the accused to rebut this presumption of sanity by a preponderance of the evidence. The rule is not, however, universally approved, and seems to be inconsistent with the presumption of innocence. The criminal intent is a material allegation of every indictment and is traversed by a plea of not guilty which puts in issue the question of criminal intent and the State should be required to show its existence beyond a reasonable doubt * * *' The second sentence, which we have emphasized, renders the request an inaccurate and self-contradictory statement of the law. The language of the request, lifted from context in Wilson v. State, 9 Ga.App. 274, 286, 70 S.E. 1128 was obiter expressing the judicial writer's personal opinion that the burden should be upon the state to prove the sanity of an accused. Thus, as is frequently the case, this language used by the appellate judge in his opinion is inappropriate for use in a charge by a trial court judge. See Merritt v. State, 107 Ga. 675, 680, 34 S.E. 361; Atlanta & West Point R. Co. v. Hudson, 123 Ga. 108, 109, 51 S.E. 29; Lewis v. State, 65 Ga.App. 214, 215, 15 S.E.2d 624.

4. Remarks of the solicitor general stating in his closing argument to the jury, 'You are not concerned with the Board of Corrections and you are not concerned with the Pardon and Parole Board. You are only concerned with the guilt or innocence of this man,' were not in violation of an Act of 1955 (Ga.L.1955, p. 191; Code Ann. § 27-2206).

5. The court did not err in refusing to declare a mistrial because the solicitor-general used the following language in his argument: 'We are proud of our Atlanta Police and we must support our police. When one of them is shot, we must prosecute and punish the individual who shot...