Opinion
39734.
DECIDED OCTOBER 8, 1962.
Contempt; failure to appear in court. Chattooga City Court. Before Judge Boney.
D. L. Lomenick, Jr., for plaintiff in error.
A. Cecil Palmour, Solicitor, contra.
Under the ruling of this court in Collins v. State of Ga., 32 Ga. App. 450 ( 123 S.E. 723), it was error for the trial court to hold the defendant in contempt of court for his failure to appear in court at the time set for his trial.
DECIDED OCTOBER 8, 1962.
Earl Bramlett was charged with the offense of abandonment in the City Court of Chattooga County. Upon his case being called on Monday, June 25, 1962, he announced ready and asked for a jury trial. Due to a death in the family of a State witness, the State requested a continuance until Thursday, June 28th. The request was granted by the court, who at that time ordered the defendant to be back in court on said date and told the defendant that upon his failure to do so he would be held in contempt of court. When the case was sounded several times on Thursday, June 28, 1962, the defendant failed to respond, whereupon the court issued an attachment against the defendant ordering him to show cause why he should not be adjudged in contempt of court. Upon the hearing thereon, the court rejected the defendant's reasons for failing to appear, adjudged him in contempt, sentenced him to jail and imposed a fine. It is to this judgment that the defendant excepts.
We need not consider whether or not the trial court abused its discretion in holding the defendant in contempt of court based on the facts adduced at the hearing held thereon since we think this case is controlled by the decision of this court in Collins v. State of Ga., 32 Ga. App. 450 ( 123 S.E. 723), in which Judge Broyles said: "Where one indicted for a bailable offense has been arrested and has given bond for his appearance at the next term of the court, and fails to appear at that term, his bond can be forfeited, and he can be re-arrested on a new warrant; . . . but there is no law in this State authorizing his punishment for contempt of court for failing and refusing to appear in accordance with the terms of the bond."
It is assumed that the defendant was under bond, this being a bailable offense, and that his appearance in court on June 25, 1962, did not of itself discharge his surety. See Alexander v. Slear, 177 Ga. 101 ( 169 S.E. 304). Therefore, when he failed to appear upon the call of his case at the postponed time, the same remedies were available to the court as would have been upon his failure to appear in the first instance.
Under such conditions, the principles set forth in the above quoted decision would govern, making it error for the court to hold the defendant in contempt of court for his failure to appear at the time set for trial.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.