Turner v. State

• Decision Date: 03 May 1935
• Docket Number: No. 24588.,24588.
• Parties: TURNER. v. STATE.
• Court: Georgia Court of Appeals

51 Ga.App. 216

179 S.E. 850

TURNER.

v.STATE.

No. 24588.

Court of Appeals of Georgia,

Division No. 2.

May 3, 1935.

Syllabus by the Court.

1. The evidence supports the verdict

2. The court did not err in overruling the motion for a continuance.

3. "A refusal to quash an indictment is no ground for granting a new trial."

Error from Superior Court, Warren County; C. J. Perryman, Judge.

James Turner was convicted of possessing "3.2 beer, " and he brings error.

Affirmed.

Jack D. Evans and Randall Evans, Jr., both of Thomson, for plaintiff in error.

J. Cecil Davis, Sol. Gen., of Warrenton, for the State.

MacINTYRE, Judge.

James Turner was convicted under an indictment charging that he committed the offense of possessing "3.2 beer." The exception is to the judgment overruling the motion for a new trial as amended.

There was direct evidence that the defendant possessed the beer as charged in the indictment, and the court did not err in overruling the general grounds of the motion for a new trial. Likewise the first ground of the amendment to the motion for a new trial, which is merely an elaboration of the general grounds, was properly overruled.

In the second ground of the amendment to the motion for a new trial error is assigned because the court overruled a motion for a continuance, based upon two grounds: (1) The physical condition of movant's only counsel; and (2) counsel's lack of time to prepare the case. It appears from the ground that counsel stated to the court: "We have not had the necessary time to prepare the case. Last Tuesday I was in court all day, and Wednesday I was spoken to by the defendant about representing him. On Wednesday I went to the Democratic convention in Macon. I got back last night. I understand the indictment was found Wednesday night. The defendant was not under bond until this week of court. * * * I know I have not had the necessary time. * * * Last night I got to probing my foot that I had cut a nail off of. * * * It has been paining me ever since I went to bed last night. * * * I am not prepared to say that I would not be able to try the case as well as I ever was. * * * I am willing to say I don't know whether it would affect the trial; my mind is on my toe." It also appears from the ground that in reply to the following statement of the court, "I will continue the case if you will state that you are unable to try the case, " counsel said: "I won't say that." Obviously the court did not err in overruling the motion for a continuance in so far as it was based upon counsel's illness. See Rawlins v. State, 124 Ga. 31 (19), 52 S. E. 1.

Then, should the ease have been continued because of counsel's lack of time to prepare for trial? The defendant was arrested on May 28, 1934, upon a warrant dated May 26, 1934, and, so far as the record discloses, was at large from the time of his ar rest until the day he was tried on October 5, 1934. The indictment was returned at the October term, 1934. The sheriff of Warren county testified in part: "Saturday night I was in Thomson, and he [the defendant] says: 'If they don't get a bill against me for the beer, call me up'"; that he told the defendant the court was in session, and that his case "would be presented to the grand jury"; that the defendant was "up here day before yesterday or yesterday one"; that witness "told him they got a bill against him, " and that "day before yesterday he was up here and got an excuse from you [Mr. Davis] to go home." The defendant testified that he first asked Mr. Evans on Tuesday night to represent him, but that he saw Mr. Stevens Monday night and asked him if he would represent him "if Mr. Evans did not get back in time"; that he spoke to Mr. Stevens "yesterday...