Opinion
17360.
FEBRUARY 13, 1951.
REHEARING DENIED MARCH 14, 1951.
Rape. Before Judge Brooke. Pickens Superior Court. November 17, 1950.
Joseph S. Crespi and Hugh C. Carney, for plaintiff in error.
Eugene Cook, Attorney-General, James T. Manning, Solicitor-General, J. R. Parham, Assistant Attorney-General, contra.
1. The fact that an accused is imprisoned is no reason why he should not make preparation for his defense, and, on a motion for continuance or postponement, the time and opportunity which counsel has had to prepare for trial is within the sound discretion of the trial judge and will not be interfered with unless abused. Woodward v. State, 197 Ga. 60 (1), ( 28 S.E.2d 480), and citations.
2. ( a) A challenge to the array of jurors must be in writing. Code, § 59-803; Thompson v. Buice, 162 Ga. 556 (2), ( 134 S.E. 303), and citations. Nor can a challenge to the array be made a ground of a motion for new trial, but such question should be raised in a bill of exceptions or exceptions pendente lite. Mattox v. State, 181 Ga. 361 (1), ( 182 S.E. 11), and citations.
( b) The improper remark made by the witness was ruled out by the trial judge, who also instructed the jury not to consider it in making their verdict; and the refusal to declare a mistrial was not error. Brown v. State, 203 Ga. 218 (7), ( 46 S.E.2d 160); Hicks v. State, 196 Ga. 671 ( 27 S.E.2d 307).
3. While a defendant in a criminal case cannot be placed under oath, he may consent to be cross-examined. Roberts v. State, 189 Ga. 36 (1), ( 5 S.E.2d 340). The colloquy here between the court, the attorney for the accused, and the solicitor-general, when considered as a whole, was not a denial of the right of accused to be cross-examined, nor did it tend to depreciate the effect of the defendant's statement, or amount to an expression of opinion as to the defense of the accused.
4. The evidence authorized the verdict.
Judgment affirmed. All the Justices concur.
No. 17360. FEBRUARY 13, 1951. REHEARING DENIED MARCH 14, 1951.
Rogers Henry Porch was indicted for rape on September 26, 1950, and the case called for trial on September 27, 1950. The attorneys for the accused moved for a continuance "in order to prepare the necessary defense." The court declined to continue the case, but permitted the attorneys to confer with the accused for 15 or 20 minutes. Following the conference with the accused, the attorneys made a second motion, which sought to continue the case for 24 hours, stating that "since our employment we haven't had an opportunity to confer with defendant until this morning . . some 15 or 20 minutes. We are not able to go to trial."
By a counter-showing the State produced evidence: that the accused was arrested July 18, 1950, and held under a warrant charging rape; that two other attorneys had communicated with court officers concerning the case, one on August 25, 1950, another on September 11, 1950; that on September 21, 1950, both of his present attorneys conferred with the accused at Reidsville, Georgia, where he was then incarcerated, and on September 23, 1950, one of the attorneys was in Jasper, the county site, "working in regard to this case." The sheriff testified that he told one of the attorneys on Tuesday (the day before the trial) ". . that the prisoner was at the jail and it would be all right if he wanted to see him."
During the counter-showing made by the State on the hearing of the motion to continue, the sheriff, in accounting for the whereabouts of the accused since his arrest, testified, "He was a prisoner escaped from Pickens County, and I sent him to the Cherokee County jail," to which the attorney for the accused stated: "I would like to state to the court that the sheriff by his declaration and statement has placed the defendant's character in evidence by stating he is an ex-convict, in the presence of these five panels of jurors, and we now say for the record that they are disqualified, and we object to the same."
When Wallace Wheeler was on the stand, testifying as to a conversation with the accused, he stated: ". . I then began asking him questions regarding the way he was in the gang and about his escape." Counsel for the accused made a motion for a mistrial. The Court stated: "You didn't object to that evidence, did you?" Counsel replied: "I am objecting to it now." The Court: "I sustain the objection . . as to his being an escaped convict; the jury won't consider that in making up their verdict in this case. I sustain the objection to any evidence of that character. And I overrule the motion for a mistrial." As to this the record shows that the accused in his statement said: "I was in this case, which I am already on in August of 1949. I was seventeen when I got into it. I didn't have no witnesses in that case, and no lawyer. I got three to four years."
At the conclusion of the statement of the accused, his counsel offered to permit the solicitor-general to cross-examine him, stating: "We don't seek to swear this defendant. We waive his immunity to cross-examination." The Court (addressing the defendant): "You can go down. Go back to your seat." Attorney for the accused: "Do you hold that he is not subject to cross-examination." The Court: "Yes." Attorney: "We move for a mistrial on the ground that the right of this defendant to be cross-examined by this solicitor-general has been denied him by the court." The Solicitor-General: "The defendant isn't under oath. As I understand the law, he can't be put under oath, and as I said I have no desire whatsoever to put him under oath." The Court: "I overrule the motion." Attorney: "We want to understand our position. The solicitor states that he doesn't desire to cross-examine the defendant, and the court has precluded his examination by the solicitor." The Court: "He states that he doesn't desire to cross-examine him, and I don't know that you can make him do it." Attorney: "I want to know if the court precludes the examination of him before the State's attorney declines to cross-examine him." The Court: "If he doesn't want to examine him, there is no way that I can make him examine him, or you either. He has declined to cross-examine him."