Austin v. State

128 S.E. 791, 160 Ga. 509, 1925 Ga. LEXIS 194

• Court: Supreme Court of Georgia
• Decided: June 19, 1925
• Docket: No. 4874
• Status: Published

Opinion

Hines, J.

1. The illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for a continuance (Renal Code, § 990) ; but a continuance will not be granted for the absence of counsel attending eases pending in another court, except in the Court of Appeals or the Supreme Court. Peters v. Peters, 41 Ga. 242; Cotton States Life Insurance Co. v. Edwards, 74 Ga. 220; Hatcher v. Bowen, Id. 840; Carroll v. Groover, 27 Ga. App. 747 (110 S. E. 30); Hamrick v. Stewart, 29 Ga. App. 220 (114 S. E. 723).

(a) A motion to continue for absence of counsel must affirmatively disclose that the motion is not made for delay only, and that the movant expects to secure his services at the next term. Wright v. State, 18 Ga. 383 (2); Burnett v. State, 87 Ga. 622 (13 S. E. 552); Wall v. State, 126 Ga. 86 (54 S. E. 815); Curry v. State, 17 Ga. App. 377 (87 S. E. 685).

2. Under the evidence voluntary manslaughter was not involved, and the court did not err in failing to charge the law upon that subject.

(a) “Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.” Penal Code, § 65.

(b) In the absence of a written request, the trial judge is not bound to give in charge to the jury sections 64 and 65 of the Penal Code, the former defining manslaughter, arid the latter .defining involuntary manslaughter, where the theory of manslaughter is based solely upon the statement of the defendant. Evans v. State, 151 Ga. 434 (107 S. E. 38).

3. The verdict is supported by the evidence.

Judgment affvrmed.

All the Justices concur, except Gilbert, J., absent for providential cause, and Russell, C. J., dissenting. I. J. Bussell, for plaintiff in error. George M. Napier, attorney-general, A. B. Spence, solicitor-general, and T. B. Gress, assistant attorney-general, contra.