The court did not err in overruling the motion for a new trial for any of the reasons assigned.
DECIDED MARCH 8, 1945. REHEARING DENIED MARCH 26, 1945. The defendant was convicted of sodomy. In the first special ground of the motion for new trial he contends that "the court erred in the trial of said case, and during the trial of the same, in refusing to continue the case for a reasonable length of time on account of the absence of his leading counsel. Willis Smith, the following motion having been made: Mr. Andrews [assistant counsel for the defendant]: `If the court please, I wish to make a motion to continue the case because Mr. Smith, who is leading counsel in the case, has been injured in an automobile accident and is not able to appear.' Wilbur McKenzie, called as a witness in regard to the motion, testified (direct examination): `My name is Wilbur McKenzie. I am the father of the defendant on trial, W. O. McKenzie. I employed an attorney to defend my son in this case, Col. Willis Smith of Carrollton. He was in court yesterday, and I have not seen him since, and I am informed that he was injured on the way home. I have not discussed the case with you, Mr. Andrews.' (cross-examination): `I was ready to go on trial yesterday. I was informed that he was injured in a wreck. He is not present here this morning.' Mr. Andrews: `I would like to add that I have not talked to a single witness in this case, and I have only been employed as associate counsel. All I know about Mr. Smith's condition is what I was told by a young lady in his office in Carrollton, that he would not be able to come to court to-day on account of an accident that he had going home.' The court: `The court will have to hold that you have not made a sufficient showing with reference to Mr. Smith's illness. Is there any other evidence?' Mr. Andrews: `No, sir.' The court: `The motion is overruled and the case shall go on trial.' Mr. Andrews: `If the court please, I would like to make an additional motion. The motion is for delay that I may get some evidence from the government in regard to this man's mental condition. I have no evidence to present to the court as to his mental condition, and I want to get a record in regard to his insanity. I would like to prove that, if the evidence is available, and present it at this time.' Wilbur McKenzie recalled (direct examination): `I just could not say whether Mr. Smith has some records from the government showing the mental condition of this boy — he has a record of his discharge from the army, but I don't know what other records he has.' Mr. Garland: `If the court please, we object to *Page 210 that as irrelevant and immaterial.' (The matter was then discussed at some length.) Mr. Andrews: `If the court please I would like to be sworn and make a statement.' The court: `Very well.' Judson Andrews being sworn testified as follows: `If the court please, Mr. Smith had in his records on yesterday a certified copy of the records of the ordinary's court of Carroll County as to the mental condition of this party, and I have not got any evidence in hand this morning. He also had a certified copy of the discharge from the army of the defendant, as to that I could not state as to its admissibility or whether it is proof of his mental condition.' The court: `I will overrule the motion and let the case proceed. I want to make a statement as to what happened yesterday morning in connection with this matter. The case was called for trial on Monday, June 19th. Mr. Smith of Carrollton made a motion that the case be not called for trial on that day, and the State made a motion that the case be set down for Tuesday. Mr. Smith also requested that the case be set down for Wednesday instead of Tuesday. The case was set down for Tuesday apparently with the acquiescence of Mr. Smith. The court is now of the opinion, in so far as the motion for continuance on account of Mr. W. O. McKenzie's (defendant's) condition, is not now pending. I have heard the motion for the defense at the present time in reference to absence of counsel for the defendant and I have overruled the motion.' The affidavit of Willis Smith, counsel for defendant, now movant, is hereto attached and made a ground of the amended motion for a new trial, together with the affidavit of Miss Lillian Teal, his secretary. Said affidavits being marked `Exhibit A' and `B' respectively, and made a part of this motion for a new trial; and movant contends that the court committed reversible error, and the same was harmful to the defendant, now movant, in not continuing the case for a reasonable length of time until his leading counsel, the only counsel who had conferred with any of the witnesses in the case, or who had made preparations in the trial of the case, to recover from his illness. The alleged offense having been committed on the first day of June, 1944, and the defendant indicted on June 2, 1944, the case set down for trial on the 19th day of June, 1944, and the case had not been continued by the defendant or his counsel, except that the judge had continued it from Monday, June 19th, to Tuesday, June 20th, and *Page 211 movant insists that it was error, harmful and prejudicial, not to continue the case for a reasonable length of time, or even a few days until his leading counsel could have been present to conduct the trial of said case; and the refusal to continue the case and to force him to trial without his leading counsel, but with an attorney who knew absolutely nothing about the case, was harmful and injurious to him, and as movant insists was reversible error. It was further error to refuse to continue the case for a reasonable length of time for the reason that the leading counsel for the defendant had in his possession a certified copy of the court of ordinary adjudicating the defendant insane, and there was no way for Mr. Andrews, the associate counsel, to obtain this evidence and present it to the court and jury." The affidavit of leading counsel, Willis Smith, referred to as being attached to this special ground of the motion for new trial, omitting the formal parts, is as follows: "Affiant says that on or about the 14th or 15th day of June, 1944, he was employed by the father of the defendant to represent the defendant in Fulton superior court. That he had prepared the case for trial personally the best he could for the short length of time he had. That on June 19th he went to Atlanta when the case was assigned for trial before Judge Hooper. That he had a showing for continuance on the ground that the defendant was insane, as was shown by the affidavits of two doctors. Said affidavits are hereto referred to and made a part of this affidavit. At the time, the defendant was not present but was at Carrollton, Georgia, under bond. The showing for continuance was overruled by the court, and the case checked for the following day, June 20th. Affiant requested the court to check it until the 21st day of June, which was refused. Affiant further says that he returned home on the afternoon of the 19th and became ill that night. That the next morning of June 20th he was still ill, but started to Atlanta in his automobile alone. After going a few miles that he grew much worse and had to return home. When he got home he found that Dr. Scales and Dr. Reese, witnesses for the defendant, and the defendant's father, had already gone to Atlanta and he had no way, or time, to get a certificate of a doctor or to send a certificate to Atlanta, and that he requested his secretary, Miss Lillian Teal, to call the judge, Mr. Hooper, or Mr. Andrews, whom he had associated in the case, and request them to continue the case for a day *Page 212 or so until he recovered sufficiently to try the case." The affidavit of Miss Lillian Teal, omitting the formal parts, stated, "that on the morning of June 20th, Willis Smith called her over the `phone and requested her to call Judge Hooper or Mr. Judson Andrews and inform him he was ill and unable to go to Atlanta and attend court that day, and requested him to check the case for a day or two, or until he had recovered sufficiently to try the case. Affiant says that she called Mr. Judson Andrews, and told him this."
"A showing for a continuance on the ground of the absence and illness of leading counsel is not complete, under section 3525 [81-1413] of the Code, without a statement on oath that the application is not made for delay only." Burnett v. State,87 Ga. 622 (13 S.E. 552). "A showing for a continuance upon the ground of the absence of a witness, is insufficient if it omits to state that the application is not made for the purpose of delay." Newsome v. State, 61 Ga. 481. In the language of the trial judge, "the case was called for trial on Monday, June 19, 1944. Mr. Smith of Carrollton made a motion that the case be not called for trial on that day and the State made a motion that the case be set down for Tuesday. Mr. Smith also requested that the case be set down for Wednesday instead of Tuesday. The case was set down for Tuesday apparently with the acquiescence of Mr. Smith." If the defendant were insane at the time of the trial, the law provides a method of protecting him by a special plea of insanity, under which the court must determine his plea of insanity before he is even required to plead to the indictment.Baughn v. State, 100 Ga. 554, 557 (28 S.E. 68, 38 L.R.A. 577). Of course, under the defendant's general plea of not guilty, he may prove that he was insane at the time of the alleged criminal act even though he be sane at the time of the trial. At the time the case was called for trial on June 19, 1944, so far as the record shows, there was no intimation that the defendant was then and there insane, and when the case was again called for trial on June 20, 1944, the motion for a continuance was made on account of the illness and absence of the defendant's leading counsel, associate counsel stating: "I have not talked to a single witness in this case and I have only been employed as associate counsel. All I know about Mr. Smith's condition is what I was told by a young lady in his office in Carrollton. She called me and said that he would not be able to come *Page 213 to court to-day on account of an accident he had going home." The court stated to counsel, "that he had not made a sufficient showing with reference to Mr. Smith's illness," and asked if there was any other evidence. The associate counsel replied, "No, sir." The court overruled the motion and ordered the trial to proceed. Up to this time the court had not been informed by a special plea or otherwise that it was expected to be proved that the defendant was or had been insane at any time. After the motion to continue on account of illness of counsel had been overruled, as above indicated, the associate counsel requested that he be allowed additional time to get a record in regard to the defendant's insanity, and being sworn testified: "Mr. Smith had in his records on yesterday a certified copy of the records of the ordinary's court of Carroll County as to the mental condition of this party, and I have not got any evidence in hand this morning. He also had a certified copy of the discharge from the army of the defendant. As to that I could not state as to its admissibility or whether it is proof of his mental condition." There was still no direct statement by a special plea of insanity or by associate counsel that the defendant was unable to look after his interest at the time the motion for a continuance was made, or to testify on said motion. If the alleged copy of the inquisition finding the defendant insane in the court of ordinary was rendered after the crime was committed it could not be admitted in evidence. Murphy v. State, 70 Ga. App. 387 (28 S.E.2d, 198). As to the contents of the defendant's discharge from the army, associate counsel expressly stated that he did not know whether it would be admissible or whether it contained proof of the defendant's mental condition. Thus at the time of the overruling of the motion for a continuance it did not appear that the absent leading counsel had in his possession any evidence which would be legally admissible. There being no specific plea of insanity and no specific statement or evidence by anyone that the defendant contended that he was insane at the time of the motion for a continuance, and no reason appearing why the defendant should not have testified that the motion was not made for delay only, we can not say that the court abused its discretion in holding that the showing for a continuance was insufficient. It might be noted here that whatever legal evidence there was of undertaking to show insanity appeared after the overruling of the motion for a continuance. *Page 214
In the instant case the application was made by one of the attorneys for the defendant. Furthermore, neither in the application nor in the evidence adduced upon the hearing thereof was there any direct statement or testimony that the application was not made for delay only. "Continuances on account of the absence of counsel are not favored, and a strict showing is required." James v. State, 150 Ga. 76 (102 S.E. 425). "It is no ground for a new trial that the court refused to continue, because of the absence of one of the prisoner's counsel, on whom he principally relied, from sickness, the affidavit for continuance only saying that the affiant had been informed by letter of the sickness; especially if it appear that other competent counsel are employed and do appear in the trial."Loyd v. State, 45 Ga. 57 (4). It appears in the instant case that another competent counsel was employed and participated in the trial of the case. Furthermore, no affidavit or other legal evidence by a physician, or by any other person, stating that the absent counsel was ill and unable to attend court was presented to the judge during the hearing of the application. The only evidence as to the illness of counsel was a statement by several witnesses that they had been informed by other persons that counsel was ill; and the judge then stated: "The court will have to hold that you have not made a sufficient showing with reference to Mr. Smith's illness." Since no affidavit or other evidence (except hearsay evidence) as to counsel's illness was presented to the judge upon the hearing of the application, it was unnecessary for the State to make a counter-showing. InChivers v. State, 5 Ga. App. 654 (63 S.E. 703), the motion for continuance was based on the ground that the defendant's leading attorney was ill and unable to attend the trial; that movant could not go safely to trial without the services of said counsel; that he expected said services at the next term of the court; and that his application for continuance was not made for delay only. In support of the motion in the Chivers case, "the defendant introduced his own affidavit and the affidavit of the attending physician of his absent counsel, in which he fully supported the specific allegations contained in the motion." While, as before stated herein, in the instant case no affidavit or other legal evidence was introduced, on the hearing of themotion for continuance, to prove the illness of the absent counsel. *Page 215
A month and a half later, when the defendant was unfolding his motion for a continuance at the time of the hearing of the motion for new trial, the only evidence of probative value introduced as to counsel's illness was the statement in his affidavit which was as follows: "That he returned home on the afternoon of the 19th and became ill, but [on the 20th] started to Atlanta in his automobile alone; that after going a few miles he grew much worse and had to return home; that when he got home he found that Dr. Scales and Dr. Reese, witnesses for the defendant, and the defendant's father, had already gone to Atlanta, and he had no way, or time, to get a certificate of a doctor or to send a certificate to Atlanta, and that he requested his secretary, Miss Lillian Teal, to call the judge (Mr. Hooper), or Mr. Andrews, his associate counsel in the case, and request them to continue the case for a day or so until he recovered sufficiently to try the case." There is no direct statement in this affidavit that the motion for a continuance was not made for delay only. Counsel further stated in his affidavit attached to the motion for a new trial that the reason he did not submit the certificate of a doctor at the time of the hearing of the motion for a continuance was that "when he got home he found . . that he had no way, or time, to get a certificate of a doctor or send a certificate to Atlanta." However, a month and a half later, at the hearing of the motion for a new trial, and after the counsel had had time to get such a certificate if he wished to do so, no affidavit of a doctor as to counsel's illness was made a part of the motion for a new trial. The record does not show whether the certificate was not filed because of a lack of diligence, or through inadvertence, or because counsel had not obtained or preferred not to introduce it, or why it was not done. The court, in the absence of such affidavit of a doctor, might have determined that the affidavit of counsel introduced in the motion for a new trial (as held in Anderson v. State, 72 Ga. 98, 102) was not, in connection with all the other facts and circumstances, full, satisfactory, and direct as to material allegations necessary for showing the purpose for which it was introduced, in that it did not affirmatively disclose that counsel was ill as contemplated in the Code, § 81-1413. See also Wall v. State, 126 Ga. 86 (54 S.E. 815).
"The illness of counsel contemplated by law is such a physical condition resulting from sickness, ailment, malady, or disease, as *Page 216 would prevent counsel from properly attending to his duties as such." Whatever the physical condition of the counsel was at the time the motion for a continuance was made, the trial court was entitled to a sufficient showing as to his illness before continuing the case, or thereafter before granting a new trial. The counsel himself is not, under all circumstances, the judge of whether he was merely indisposed, or whether his illness is such as is contemplated in the Code, § 81-1413; for the court is the tribunal vested with the authority to decide from the facts and circumstances of this case as to whether the illness was a legal illness. The court might have further determined that the showing for a continuance was not complete, in that there was no direct statement under oath, either at the time of the application for a continuance or at the hearing of the motion for a new trial, that the application was not made for delay only. Rawlins v.State, 124 Ga. 31 (52 S.E. 1). "A showing for a continuance on the ground of the absence and illness of leading counsel is not complete, under section 3525 [81-1413] of the Code, without a statement on oath that the application is not made for delay only." Burnett v. State, supra; Newsome v. State, supra. There is no direct, affirmative statement under oath anywhere inthe record that the application for a continuance was not made for delay only. Roth v. State, 70 Ga. App. 93 (27 S.E.2d 473). Nor is there any proper showing at the time of the motion for continuance that leading counsel, at the time of his absence in question, had in his possession any legal evidence that was admissible tending to show the insanity of the defendant at the time of the hearing of the motion for a continuance. The affidavit of leading counsel, Mr. Smith, referred to above and introduced at the time of the hearing of the motion for new trial, stated: "That on June 19th, he went to Atlanta when the case was assigned for trial before Judge Hooper; that he had a showing for a continuance on the ground that the defendant was insane, as was shown by the affidavits of two doctors. Said affidavits are hereto referred to and made a part of this affidavit." The doctors are not named in Mr. Smith's affidavit, and even though leading counsel had a showing as to the insanity of the defendant, which he could have presented on June 19th, and even though he, at that time, had in his possession the affidavit of the two doctors, this does not necessarily show that counsel made such a showing on June 19th, *Page 217 for, relative to this, Judge Hooper states that on June 19th counsel asked that the case be set for trial on June 21, but that he set it for trial on June 20, apparently with the consent of counsel. There appears in the record, attached after the judge's certificate an affidavit of Doctors S. F. Scales and D. S. Reese, which states that the defendant is now (June 17, 1944) insane. This affidavit immediately follows the affidavit of Mr. Smith, but is not entitled in the cause and is not referred to as an exhibit, and, even if it relates to a ground of the motion for a new trial, can not be considered by this court when transmitted in the record as a part of the record, where the affidavit is not referred to in such motion, nor attached to the motion as an exhibit, nor filed under the order of the judge and then made a part of the record. McDonald v. State, 129 Ga. 452 (59 S.E. 242); Glover v. State, 128 Ga. 1 (57 S.E. 101);Harman v. Stange, 62 Ga. 167. In short, although attached in the record, it is without any identification by the judge.Taylor v. Cook, 51 Ga. 215; Fisher v. State, 73 Ga. 595,603 (7). But even though the affidavit of Doctors Scales and Reese, although attached in the record immediately after the affidavit of Mr. Smith, had been properly identified, we still think that, in view of the fact that these two doctors appeared and testified as witnesses in behalf of the defendant on the trial, in which, notwithstanding their testimony, he was found guilty, we should not say that the judge abused his discretion in overruling the motion for new trial. It might be here noted that over a month after the motion for continuance was made, and when the motion for new trial was heard, it was not shown that a copy of the inquisition in the court of ordinary or the discharge of the defendant from the army, both of which were referred to at the time of the motion for a continuance, would have been admissible in evidence on the motion for a continuance. "The presiding judge has a discretion in ordering the business of his court and determining whether it is proper to postpone a case or not; and it is only in instances of flagrant abuse in the exercise of such discretion that this court will interfere."Clay v. Barlow, 73 Ga. 787 (2); Roth v. State, supra. The majority of the court do not think that the trial judge abused his discretion in overruling the motion for a continuance on the ground of illness of counsel, and in thereafter deciding that special ground 1 of the motion for a new trial was *Page 218 not meritorious. Hence we can not say that the overruling of the motion for a continuance was reversible error.
2. Special ground 2. This ground as it appears in the record shows that the ruling of the court was favorable to the defendant, for the court overruled the State's objection to the testimony in question. This ground is not meritorious.
3. Special ground 3. The court charged the jury as follows: "Gentlemen, the law makes you the exclusive judges of the credibility of the witnesses, who have testified in this case. In passing upon their credibility you may take into consideration their manner and demeanor while on the witness stand, their interest or want of interest in the outcome of the case or any party to the case, and the reasonableness or unreasonableness of their testimony, their bias or prejudice, if that should appear in the case, their means and opportunity for knowing the facts to which they testified, their intelligence, the probability or improbability of their testimony, and you may consider their personal credibility in so far as the same appears from the trial of this case." The defendant insists that the use of the words, "you may take into consideration their manner and demeanor while on the witness stand, their respective interest or want of interest in the outcome of the case or any party to the case," was very harmful to the defendant in the case at bar for the reason that his defense was insanity and he made no statement in the trial of the case. The defendant having made no statement it seems obvious to us that this mere inadvertence of the judge was not harmful error which would require a new trial.
4. Special grounds 4 and 5. The judge gave to the jury clearly and fairly the law applicable to the issue of insanity, as it was involved under the evidence in the instant case. Central Ry.Co. v. McKinney, 118 Ga. 535 (45 S.E. 430). Here there were no requests to charge and, if the defendant wanted a fuller charge, he should have so requested.
5. Special ground 6. This ground complains of the following charge of the court, to wit: "When the issue of such insanity is presented the burden is on the defendant to show to the reasonable satisfaction of the jury that at the time of the alleged commission of the act charged against him he was insane. Whether or not that has been done either by evidence from the State, or established by evidence from the defendant, or both, is a question *Page 219 to be determined by the jury. It is not necessary that the defendant sustain his defense of insanity to your satisfaction beyond a reasonable doubt, but only that he shall establish it to the reasonable satisfaction of the jury by a preponderance of the evidence. If the defendant's evidence as to the alleged insanity, either by itself or taken with the other testimony in the case, is sufficient to create in your minds a reasonable doubt as to his guilt, it would be your duty to give the defendant the benefit of that doubt and find him not guilty," on the ground that "it placed an undue burden upon the defendant `to show to the reasonable satisfaction of the jury that at the time of the alleged commission of the act charged against him he was insane,' the law being that the defendant must show his insanity by a preponderance of the evidence and not to the reasonable satisfaction of the jury or to a reasonable certainty, but only by a preponderance of the evidence." We think that the contention in this assignment of error is decided adversely to the defendant in Thompson v. State, 191 Ga. 222, 230 (11 S.E.2d 795).
6. Special ground 7 is decided adversely to the defendant inBargeman v. State, 17 Ga. App. 807 (88 S.E. 591). See alsoBrooks v. State, 63 Ga. App. 575, 581 (11 S.E.2d 688).
7. Special ground 8 is decided adversely to the defendant inBrooks v. State, supra, wherein it is said: "Nor is it error, in the absence of a request, to fail to charge that in the commission of a crime there must be joint operation of act and intent or criminal negligence."
8. The evidence authorized the verdict.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.