Turner v. State

• Decision Date: 17 November 1942
• Docket Number: 29769.
• Citation: 22 S.E.2d 864,68 Ga.App. 348
• Parties: TURNER v. STATE.
• Court: Georgia Court of Appeals

22 S.E.2d 864

68 Ga.App. 348

TURNER v. STATE.

No. 29769.

Court of Appeals of Georgia, Division No. 1.

November 17, 1942

The exceptions pendente lite are: "When said case was called, and before trial of the same, the question arose, on motion of defendant, to continue the same on the ground of the absence of his sole counsel, said attorney had not been granted any leave of absence in said case, when and whereupon the said judge overruled said motion, which said decision was adverse to and against the contentions of defendant, to which ruling and decision of the court defendant then and there excepted, and now excepts, and assigns said ruling and decision as error, as being contrary to law, and as said matter does not appear of record, defendant, within the time prescribed by law, tenders these exceptions pendente lite and prays ***."

The amended grounds read:

"1. Because the court erred, as movant insists, to grant a continuance of said case (1) when movant, through his counsel, John T. Dorsey, on the afternoon of March 4, 1942 over the telephone, called his honor, L. B. Wyatt, judge of said court, and represented to him that he had been taken into custody within an hour or two in Marietta, Ga., by the sheriff of Cobb County; that he had employed him as counsel in said case; that his said counsel was actually engaged in moving his office and effects to another office, which would require his presence and prevent his attendance during the balance of the week; that said case was three years old and that he had been in the State's custody for more than twenty mouths during the pendency of said case and part of the time on his own bond; that if the court would grant a continuance of the case he Could, and would, make reasonable bond to appear at such future time as the court directed which request for continuance was refused; and (2) when movant in said court, upon the call of said case, in person made a motion for continuance thereof, as follows: Defendant 'I would make a motion.' Lewis Turner, the defendant sworn: 'I employed as a lawyer John T. Dorsey, formerly solicitor-general of the Blue Ridge Circuit. He knows my case. I ask for a continuance. I can make a reasonable bond. Just paroled out of the State pen itentiary Wednesday, last Wednesday, just went to work at Marietta and trying to live right. I ask for a continuance of the case so my lawyer can be here. He told me he called Judge L. B. Wyatt and informed him he could not be here. That is all I have to say.' The court: 'Mr. Dorsey called me and the only reason he gave for not being here he was moving his office. I told him I would not continue the case on that ground. Proceed with the trial of the case. Are you ready to plead?' Defendant: 'I stand mute.'

"Movant avers that the court erred in not granting a continuance of said case, though usually in his discretion, because: 1. It deprived him of the services of the only counsel who knew his case. 2. There was no pressing need of trial, as defendant for more than twenty months had been within the jurisdiction of the court, serving a sentence in the State penitentiary imposed in Carroll superior court, also of Coweta judicial circuit, and having been paroled for only a week when again taken into custody in the instant case. 3. It left no time within which any counsel not familiar with his case could familiarize himself with his case and prepare for his defense in a proper way, taking into consideration the seriousness of his defense.

"2. Because the minutes of said court, which minutes were entered in minute book --, on the 31 day of March, 1942, subsequent to the trial of said case, shows March 6, 1942, as the date of said trial, while the entry of the solicitor-general on the bill of indictment, to wit: 'Upon the call of the within case the defendant Lewis Turner was formally arraigned, the indictment being read to him, and he announced he "stands mute," the 48 jurors were then called and the array placed upon him. March 7, 1942,' shows a different date, to wit, March 7, 1942.

"Movant avers that, in cases where the defendant stands mute, it becomes the immediate duty of the solicitor-general to make such entry on the minutes of the court, and new trial should be granted him, because: 1. This conflict in dates, set out in this ground, is both irreconcilable and incurable. 2. Should it be determined that the date of trial was in fact March 6, 1942, no entry of the fact that defendant stood mute being entered by the clerk in the minutes at the time, and not before March 31, 1942, and then entered in the absence of an order nunc pro tunc, which movant avers is a fact, such omission vitiates said trial. 3. Should it be determined that the date of trial was in fact March 6, 1942 no entry of the fact that defendant stood mute being entered on the bill of indictment on March 6, 1942, but at a later date, by the solicitor-general, such omission vitiates said trial, no issue being joined either in fact or effect.

"3. Because the jury list furnished by the clerk to movant, and the one the clerk retained as his office list, contained only thirty-eight names, twelve of which, as shown by said office list, of file in said clerk's office, presumably were out on another case, certainly not available to movant, leaving only twenty-six names from which to select a jury. He avers that the failure to furnish him with a list containing the names of forty-eight jurors vitiates said trial, because: 1. Such failure or omission deprived movant of the legal rights to which he was entitled. 2. Such failure or omission was prejudicial and harmful to the interests of movant. 3. When movant stood mute, he was entitled to have forty-eight jurors put upon him by formal presentation, and to have their names furnished to him, from whom and which to strike a jury to try said case."

The certificate of the judge in approving the grounds of the amendment to the motion is as follows: "1. As to the first ground of amended motion, prior to the time the court required the defendant to go to trial he appointed an attorney to represent defendant and directed the attorney to go out and confer with him. A few minutes after this...