Opinion
17705.
SUBMITTED JANUARY 15, 1952.
DECIDED FEBRUARY 13, 1952.
Murder. Before Judge Carpenter. Putnam Superior Court. October 20, 1951.
James M. Watts Jr. and Peter J. Rice, for plaintiff in error.
Eugene Cook, Attorney-General, R. L. Addleton, Assistant Attorney-General, and C. S. Baldwin Jr., Solicitor-General, contra.
1. The verdict was authorized by the evidence, and it was not error to overrule the general grounds of the motion for new trial.
2. The trial judge did not abuse his discretion in refusing to grant the motion for continuance.
No. 17705. SUBMITTED JANUARY 15, 1952 — DECIDED FEBRUARY 13, 1952.
Eli (Bo) Griffin was indicted for the murder of W. D. Elder. The trial resulted in a verdict of guilty without a recommendation of mercy. A motion for new trial was filed on the general grounds, which was amended by the addition of a special ground assigning as error the refusal of the court to grant a continuance. The exception is to the overruling of the motion for new trial as amended.
Before the case was called for trial, counsel for the defendant made a motion for continuance on the ground that the homicide had been committed less than thirty days before the date of the trial; that counsel for the defendant had been appointed only six days before the trial, and had only two opportunities to talk with the defendant, since he was imprisoned in Fulton County, more than one hundred miles from the residence of one of counsel. Counsel stated that they had learned from talking with the defendant that he had suffered from epilepsy for twelve years. They have information that, where a person has epilepsy, there is a very definite trend toward insanity, and it would be necessary for the defendant to be placed under observation for a period of thirty days in order to determine whether or not he is insane.
A hearing was had on the motion. The defendant testified that he has had epilepsy since 1939, has had over two hundred epileptic convulsions, and has been treated by two doctors. Dr. M. Spencer Tucker, a pharmacist in Eatonton, testified that he had filled a prescription for the defendant for a drug which is used in the treatment of epilepsy. Dr. T. G. Peacock, Superintendent of the Milledgeville State Hospital, and a qualified psychiatrist, testified: He has had much experience with epileptic cases. While epilepsy is not insanity, it may cause insanity. In a mild form, epilepsy will cause a person to temporarily lose consciousness; in a more severe form, it will cause convulsions, and may cause a maniac-like reaction. It would require at least thirty days to observe a person who was having epileptic convulsions, to give a competent opinion as to his sanity. The drug which the pharmacist testified that he had furnished to the defendant is used almost exclusively for epilepsy. The drug is a sedative, and tends to prevent convulsions. In some cases he has observed that, when epileptics do not have the convulsions, they tend to have maniac-like activities. In order to determine the reaction of a person to the drug, it would require observation of thirty days or more.
The State made no counter-showing on the motion. The court stated that Dr. Peacock was in court and could testify as a witness, and overruled the motion for continuance.
On the trial, it appeared that on the morning of the homicide the defendant (a negro) and Eddy Mundy (also a negro) had come to the planning will where the deceased worked, to get some lumber for their employer. The deceased and J. C. Dorster (both white men) were assisting the negroes in the loading of the truck.
According to the testimony of Mr. Dorster, the lumber was too long for the truck, and he and the deceased had gone out to the truck to help in loading it. The witness made a suggestion to Eddy Mundy about the loading of the truck. The witness and the deceased were holding up some of the lumber, and the witness asked the defendant, who was on the other side of the truck, to fasten the gate of the truck. The defendant resented the manner in which the witness had spoken to him, and, after first walking toward the truck, turned and walked away without fastening the truck gate. The witness then told the defendant to fix the truck as he wanted to, and walked on to a boxcar where some lumber was being loaded, about fifteen feet away. The next thing the witness noticed was a commotion, and he looked back and saw that the defendant had the deceased down on the ground. He had not heard any words between the deceased and the defendant, and he was close enough that the thought he would have heard anything that was said. The witness jumped out of the door of the boxcar, and picked up a strip of lumber and knocked the defendant loose from the deceased. That was the first time that he saw that the defendant had a knife in his hand. The deceased had both of his hands around the right hand of the defendant, attempting to hold the knife away from him. The deceased at that time had a cut across his face. After the witness knocked the defendant loose, the defendant snatched the piece of lumber from the witness and started running after him with the knife. The witness ran to his car, in which he carried the deceased to a hospital. The deceased had a cut on the inside of his thigh, and was unconscious by the time they reached the hospital. He was dead within a few minutes after they arrived at the hospital.
John Williams, an employee at the planing mill, testified: It was his duty on the day of the homicide to oil the planing mill, and he went to the deceased to get the key to the oil house. He saw Mr. Dorster walk away from the truck and go into the boxcar. The witness asked the deceased for the key, and the deceased handed it to him. He heard the defendant tell the deceased that Mr. Dorster cursed him. The deceased replied, "He didn't curse you." The defendant then said, "He ain't got any business cursing at me. What business he got cursing at me? I am not scared of him or anybody here." The witness then walked away from the truck and went to the oil house, unlocked the door, and looked back to see what was happening. The defendant and the deceased were on the ground "tussling." Mr. Dorster jumped out of the boxcar and had a stick, trying to knock the defendant off the deceased. Mr. Dorster knocked him off, and the defendant snatched the stick out of Mr. Dorster's hand and ran after him. It was then that the witness saw the knife in the defendant's hand. Mr. Dorster ran to the office. The defendant went back toward the railroad. The deceased was trying to get up, and as the defendant went by him, the defendant shoved him back down, hitting him on the head, or the upper part of his body.
Eddy Mundy testified: He and the defendant came to the planing mill to get some lumber for their employer. They were loading long lumber. The deceased was helping them load it, and Mr. Dorster came up and suggested that they jack up the gate of the truck, so that the long lumber would ride better. They were all trying to get the gate up, and Mr. Dorster called to the defendant, and the defendant got out of the truck. The manner in which Mr. Dorster called to the defendant made the defendant mad, and he said, "I am human folks, you should speak to me in a better way." Mr. Dorster then walked away. The witness and the deceased were still loading the lumber. When the witness looked around, the defendant was on the deceased down on the ground. The witness let the lumber fall, and got in the truck and drove away.
The defendant's version of the homicide in his statement was that Mr. Dorster cursed him, and walked away. The defendant and the deceased then argued, and the deceased had a piece of timber drawn back to hit him, and he took it away from the deceased. He and the deceased rolled around on the ground. Mr. Dorster told him to turn the deceased loose, and he threw up his hands and told Mr. Dorster that the deceased was holding him. Mr. Dorster got a piece of timber and started hitting him with it, and cursing him. The defendant got his knife, thinking to scare the deceased and make him turn him loose, and by jerking the knife he must have cut the deceased.
1. The deceased died as the result of knife wounds inflicted on him by the defendant. The trial judge fully charged the jury the rules of law pertaining to voluntary manslaughter, involuntary manslaughter, and justifiable homicide. It was a question of fact for the jury to determine, under the circumstances related by the witnesses and the statement of the defendant, whether the homicide was murder. The verdict was authorized by the evidence, and it was not error to overrule the general grounds of the motion for new trial.
2. "Applications for continuance are made to the sound discretion of the court, and the appellate court will be careful not to interfere with that discretion, except in cases of abuse." Roberts v. State, 14 Ga. 6. "The refusal of a continuance is in the sound, legal discretion of the superior court, and not of this court, and, to make the refusal of the circuit judge to grant a continuance a ground of error, it must be made apparent, affirmatively, that the court below has abused his discretion. . . It is not enough, simply, that this court would, so far as the case is before it, have done otherwise, but it must affirmatively appear, that on the whole case, the judge was clearly wrong, before this court has jurisdiction of an error of discretion." Long v. State, 38 Ga. 491, 506. On review of the action of the trial judge in refusing to grant a motion for continuance, this court can only decide, as a matter of law, whether or not the trial judge abused his discretion.
In this case, a showing was made that the defendant had suffered from epilepsy for twelve years, and the testimony of the psychiatrist showed that epilepsy is a disease which may cause insanity, and that it would require an observation period of at least thirty days in order to determine whether or not the defendant was insane as a result of his epilepsy.
There was no evidence adduced upon the motion for continuance or upon the trial of the case to indicate that the defendant is permanently insane, or that he was afflicted with a mental derangement (caused by epilepsy) at the time of the homicide. The test of criminal responsibility in this State is whether or not the accused, at the time of the commission of the offense, had sufficient reason to distinguish between right and wrong in relation to the particular act about to be committed. Hinson v. State, 152 Ga. 243 (3) ( 109 S.E. 661); Lively v. State, 178 Ga. 693, 700 ( 173 S.E. 836). There is nothing in the testimony of the State's witnesses or the defendant's statement that would authorize an inference that the defendant did not have sufficient reason to distinguish between right and wrong at the time he inflicted the injuries upon the deceased which resulted in his death.
The reversal of the trial court by this court in Saylor v. State, 183 Ga. 440 ( 188 S.E. 514), was based upon facts entirely different from those in the present case. Under the circumstances disclosed by the motion for continuance and the evidence introduced at the hearing thereon, and the evidence in the case, we can not say that the trial judge abused the discretion vested in him in refusing to grant the motion for continuance. Compare McLendon v. State, 205 Ga. 55 ( 52 S.E.2d 294).
Judgment affirmed. All the Justices concur.