EDWARDS v. STATE, 106 Ga. App. 535 (1962)

127 S.E.2d 475

EDWARDS v. THE STATE.

39588.Court of Appeals of Georgia.
DECIDED SEPTEMBER 5, 1962. REHEARING DENIED SEPTEMBER 18, 1962.

“The constitutional guaranty of benefit of counsel to one charged with an offense against the laws of this State means something more than the mere appointment. Such counsel is entitled to a reasonable length of time to prepare properly his defense.” Smith v. State, 215 Ga. 362 (1) (110 S.E.2d 635). Under the facts and circumstances of the instant case, the trial court erred in not granting counsel’s request for a continuance of the trial, and such error requires the grant of a new trial.

DECIDED SEPTEMBER 5, 1962 — REHEARING DENIED SEPTEMBER 18, 1962.
Burglary. Ware Superior Court. Before Judge Roddenberry.

The defendant was convicted of the offense of burglary in Ware Superior Court. The only assignment of error insisted upon in this court is that the trial court “erred in refusing to grant the defendant a continuance or postponement so as to afford his court-appointed counsel time to prepare said case for trial, same being in violation of the defendant’s right to have

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benefit of counsel guaranteed to him by Art. 1, Sec. 1, Pars. 3 and 5 of the Constitution of Georgia (Code Ann. § 2-103 an Code § 2-105), and by the 14th Amendment to the Constitution of the United States.”

The record discloses that the defendant was indicted by the grand jury for burglary on October 25, 1961, arrested under a bench warrant on October 30, 1961, and confined to jail; that he was brought before the court on November 1, 1961, where counsel was appointed for him upon his statement that he was unable to employ an attorney; and that within 5 minutes from the time counsel was appointed, the court called the case for trial and the State announced ready, whereupon, the court-appointed counsel made a motion for continuance on the ground that he had not had time to prepare for trial. The court stated: “I understand the defendant has been out on bond, and I don’t know how the court could ascertain whether he needed a lawyer or not. It is always presumed that when anybody is out under bond, or it is my presumption, that they are able to hire a lawyer. I can understand your position about just having been appointed, but his man has been running at large on bond. If he had been in jail, we would have found out whether he needed a lawyer or not. I am going to overrule the motion.”

M. C. Pritchard, Pritchard Thomas, for plaintiff in error.

Dewey Hayes, Solicitor General, contra.

JORDAN, Judge.

“Peremptorily forcing one indicted for a criminal offense to trial immediately after appointment of counsel (who was not familiar with the case) to defend him, without giving to such counsel an opportunity to make an investigation of the case or prepare for the defense, is, although no other ground for a postponement or continuance of the case be urged, cause for a new trial.” McArver v. State, 114 Ga. 514 (40 S.E. 779). “While all motions for continuance are addressed to the sound discretion of the court and his discretion will not be disturbed unless there is an abuse thereof, in this case the judgment refusing a continuance must be reversed; for, under the circumstances, it was impossible for counsel, in the short time allowed, to make the investigation of the facts which it was their duty to make in order to make preparation for a proper defense of their client.” Cummings v. State, 151 Ga. 593
(107 S.E. 771).

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One of the most important guarantees of both the State and Federal Constitutions is that every person charged with an offense shall have the privilege and benefit of counsel. This principle has recently been enlarged upon in this State by the decision in Ferguson v. Georgia, 365 U.S. 570 (81 SC 756, 5 L.Ed.2d 783), and by legislation in the 1962 General Assembly. This constitutional requirement is denied in substance where court-appointed counsel is not given a reasonable time to prepare his defense before trial. If reasonable time is not given for such preparation, the accused is afforded only the privilege of counsel and not the benefit of counsel. “As has been several times said by this court, the constitutional guaranty of benefit of counsel to one charged with an offense against the laws of this State means something more than the mere appointment — such counsel is entitled to a reasonable time to prepare his defense properly.” Smith v. State, 215 Ga. 362, 365 (110 S.E.2d 635). See also Edwards v. State, 204 Ga. 384 (50 S.E.2d 10); and Brown v. State, 120 Ga. 145 (47 S.E. 547). The motion for continuance in the instant case, being made at the term at which the indictment was found, stands upon a different footing from such motions made at a subsequent term. Waldrip v. State, 34 Ga. App. 692
(130 S.E. 829); Duke v. State, 104 Ga. App. 494 (122 S.E.2d 127).

Therefore, under the facts and circumstances of the case now before us, we feel that the court did not allow a reasonable time for court-appointed counsel to properly prepare for the trial, and that such action was an abuse of the court’s discretion. Se Reliford v. State, 140 Ga. 777 (79 S.E. 1128), where the Supreme Court held that it was not a sound exercise of discretion of the court to deny a continuance where only 10 minutes was allowed the appointed counsel to confer before the trial.

The trial court therefore erred in denying the motion for new trial on the ground set forth above.

Judgment reversed. Nichols, P. J., and Frankum, J., concur.

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