Opinion
33620.
DECIDED JULY 16, 1951.
Shooting at another; from Jefferson Superior Court — Judge Humphrey. April 7, 1951.
Mark Dunahoo, for plaintiff in error.
W. H. Lanier, Solicitor-General, M. C. Barwick, contra.
1. Where the amendment to the motion for a new trial was not specifically approved by the trial court but was simply allowed and ordered filed, and no point was made there as to the sufficiency of the approval of the special grounds by the trial judge, who passed generally on the motion as amended, it is the duty of the appellate court to consider the special grounds as if approved by the trial court.
2. The matter of the granting or refusal of a continuance is generally one addressing itself to the sound discretion of the court.
( a) This discretion is not abused by the trial court where, as here, counsel is personally in court urging the motion for continuance on the ground that he is emotionally upset to such extent that he cannot give his full attention to the case, due to the fact that his cousin is a corpse some distance away from the scene of the trial and counsel has been unable to ascertain the date of the funeral, the trial court being in position to observe counsel and determine whether he appears to be fit mentally and physically to proceed with the case.
( b) This discretion is also not abused where the trial court declines to grant a motion for continuance based on the absence of a witness whose testimony would merely corroborate that of another witness who actually testified in the case, nor is it abused for declining to grant a motion on account of the absence of a witness where proper diligence is not shown on behalf of the defendant.
3. Error, to be reversible, must be shown to be harmful to the movant. Where it is urged that the court erred in failing to purge the jury for relationship to officials designated as special prosecutors, but it is not alleged that any juror would have been disqualified as being within the prohibited degree of relationship to any of such persons, no injury appears.
4. The verdict was supported by evidence and, having the approval of the trial court, will not be disturbed by this court.
DECIDED JULY 16, 1951.
G. L. Howington was indicted in the Superior Court of Jefferson County for assault with intent to murder, and convicted of shooting at another. The evidence, construed in its light most favorable to support the verdict, authorized the jury to find facts substantially as follows: That C. B. Mitchell was a colored schoolteacher of about 60 years of age; that he taught a colored school at Bartow, in Jefferson County; that on October first, 1949, he took two bus-loads of pupils to a fair at Louisville, Georgia; that the bus took one load back to Bartow after the fair and Mitchell waited for it to return and pick up the remaining children; that he and others were seated in an automobile parked off the highway by the fair grounds and still others were standing around it; that the defendant came up to the group with the words, "What in the hell all you negroes doing parked on this car?" that Mitchell, thinking the defendant was an officer, got out of the car to explain that he was a schoolteacher and the group was waiting for a bus; that, after a few words, the defendant fired two shots with a pistol, one into the ground at the prosecutor's feet, and the other into his body, severely wounding him; that the defendant had been drinking; that he was employed at a work camp and carried the pistol because after the fair he intended to search for an escaped convict; that he was arrested shortly afterward and when asked where he had put the pistol indicated that he had thrown it in a ditch, where it was subsequently recovered; that at no time did he deny the shooting, and that, when placed under arrest, he was twice asked why he had done it and on both occasions replied, "Well, you wouldn't have anybody run over you would you?"
The defendant in his statement contended that the prosecutor had cursed and abused him and started to make an assault on him with "something shiny in his hand." This was denied by numerous eyewitnesses.
Following his conviction, the defendant made a motion for a new trial on the general grounds which was later amended by the addition of eight special grounds, and the overruling of this motion is assigned as error.
1. The amendment to the motion for a new trial was not specifically approved by the trial court, but was simply allowed and ordered filed. No point was made in the trial court as to the sufficiency of the approval of these special grounds by the trial judge, and he passed generally on the motion as amended. It is the duty of the appellate court to consider the special grounds, under these circumstances, as if approved by the trial court. See Price v. State, 170 Ga. 294 ( 152 S.E. 572); Nix v. Nix, 55 Ga. App. 776 ( 191 S.E. 381).
2. The first four grounds of the amended motion for a new trial complain of the court's failure to grant a continuance on motion of the defendant. This motion was made, first, on the ground that a first cousin of counsel for the defendant who was very dear to him had just died in Monroe, Georgia; that the exact date of the funeral was not known because some of her children were in the armed forces and out of the State and they had as yet received no message as to when the children would arrive, and for this reason counsel would be unable to devote his undivided time and efforts to conducting the case, and, secondly, on the ground that the two witnesses for the defendant, N. H. Caruthers and G. L. Coleman were eyewitnesses to the shooting by whom the defendant hoped to show that he had fired only in self-defense; that Caruthers was out of the State and that a subpoena had been issued for him the day before but had not been served. It appeared that the defendant had been indicted for over a year previously; that the case had been continued twice in his behalf, once because he failed to make an appearance; that he had previously employed other counsel, but that his present counsel had been employed about two months, during which time he had talked at length at least once with the proposed witness Caruthers, and that the subpoena was not delivered to the sheriff until the previous day, after the defendant had ascertained that Caruthers was temporarily out of the State. The judge refused to grant the continuance, basing his decision on the ground that the witness's unavailability was due to lack of diligence on the part of the defendant. The case then proceeded to trial, and G. L. Coleman did appear as a witness for the defendant, but testified that he had not been an eyewitness to the shooting. As to the first ground, counsel was in court personally urging this motion, and under these circumstances it is within the discretion of the court, as a general rule, to decide whether it appears that counsel is fit, mentally or physically, to continue with the case. See Dale v. Beasley, 141 Ga. 594 (1) ( 81 S.E. 849); Rawlins v. State, 124 Ga. 31, 54 ( 52 S.E. 1). As to the other ground of continuance, refusal to grant a continuance is not error where the testimony of the absent witness would merely corroborate that of the witnesses present and able to testify. See Moon v. Wright, 12 Ga. App. 659 (5) ( 78 S.E. 141); McCarty v. Keys, 19 Ga. App. 494 (2) ( 91 S.E. 875). While the defendant's attorney testified that the witness would state that he saw Mitchell make an assault on the defendant, the defendant himself stated, as to the proposed witness's testimony, "I expect to prove by him that I did the shooting in self-defense. . . The same applies to Mr. Coleman, he was a friend and was with me at the time this happened." It thus appears that the defendant merely expected the testimony of Caruthers to corroborate that of Coleman, who appeared and testified, although his testimony failed to show that the shooting was in self-defense. Further, the case had been called to trial three times, and at no time had a subpoena been requested until the day before the trial. The defendant was represented by counsel who had previously talked with the witness. No reason was shown for failure to subpoena him in time for the trial. Accordingly, the trial court did not abuse his discretion in overruling the motion for a continuance. See Porter v. Porter, 17 Ga. App. 456 ( 87 S.E. 707).
2. Special ground 5 of the amended motion for a new trial complains of the court's refusal to charge in certain particulars as requested. Examination of the request to charge, which is quite lengthy, discloses requests to charge on the subjects of (a) definition of assault with intent to murder; (b) intent as an ingredient of the offense; (c) reasonable doubt; (d) the law as to justifiable homicide in self-defense, and (e) the principle of law relating to homicide resulting from mutual combat. The trial court charged substantially as requested on each of these subjects except that relating to mutual combat. As to the latter subject, the evidence of the State would have authorized a finding that the defendant shot without any provocation whatever, while the defendant's statement would have authorized a finding that he shot in self-defense, believing that the prosecutor was about to commit a felonious assault upon him, but there was no evidence in the record which would have authorized a finding that the killing was a result of mutual combat. Accordingly, the refusal to charge on this subject was without error. Claughton v. State, 50 Ga. App. 398 (2) ( 178 S.E. 327).
3. It appears from special ground 6 that the solicitor-general, W. H. Lanier, was assisted by Judge M. C. Barwick in the prosecution of the case, and it is alleged that the latter attorney was employed by the Chairman of the Board of Education, Judge of the City Court, and City Attorney of Louisville. The complaint is that said attorney was illegally paid with public funds, and that the jury should have been purged on the basis of relationship to the members of the board of education and city council. No such motion was made, nor was the question raised, during the trial of the case. Due diligence would have required that inquiry be made at the time of the trial as to the source of employment and compensation of the attorney who was present in court assisting in the prosecution of the case if the defendant desired to make an issue on this question. Mere irregularities in the conduct of a trial, not vitally affecting the merits of the case or the rights of the parties, will be held to have been waived if no objection was made to them at the time." Jefferson v. Hamilton, 69 Ga. 401 (3). Further, the complaint that the jury should have been purged on the basis of relationship to the members of the board of education and city council is without merit because the ground does not disclose that any juror was in fact related within the prohibited degree to any member of the board of education or city council. Error, to be reversible, must be shown to be harmful. See Wright v. State, 6 Ga. App. 779 (1) ( 65 S.E. 806). See also Farmers Union Warehouse of Metter v. Boyd, 31 Ga. App. 104 (1-2) ( 119 S.E. 542).
4. The remaining grounds of the motion for a new trial are but amplifications of the general grounds. As to these, there was the testimony of several unimpeached eyewitnesses who testified in substance that the defendant shot without provocation. The evidence is sufficient to support the verdict and, having the approval of the trial court, it will not be disturbed by this court.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.