Where one accused of crime was upon his trial defended by an attorney at law appointed for this purpose by the presiding judge, it will, unless there be clear and convincing proof to the contrary, be presumed that this attorney did his duty in the premises and properly represented his client.
DECIDED OCTOBER 29, 1947. Andrew Brown and Boisy Duval were jointly indicted, tried and convicted in the Superior Court of Grady County of the offense of breaking with intent to steal. They filed a motion for new trial based on general grounds which was later amended by adding two special grounds, one of which was based on newly discovered evidence, and the other contended that the movants were denied the rights guaranteed to them under the Constitution of the State of Georgia, art. I, sec. I, par. V (Code, § 2-105), as follows: "Every person charged with an offense against the laws of this State shall have the . . benefit of counsel." This ground of the amended motion for new trial complains that these defendants were denied this right because they were brought into court from the jail and due to their poverty unable to employ counsel; that thereupon Louis H. Foster was appointed by the court to represent the defendants; that the defendants had previously arranged with the sheriff to subpoena several alibi *Page 8 witnesses and witnesses to impeach the principal witness for the State. Counsel for the defendants asked them if they were ready for trial and failed to inquire if they had witnesses. The case was tried without the use of the witnesses for the defendants who were present in court and Louis H. Foster, then counsel for the defendants and now representing them on this appeal, insists that his failure to inquire of his clients if they had any witnesses, and his failure to use the witnesses who had previously been subpoenaed at the request of defendants and who were present in court, amounted to gross neglect on his part and a violation of the defendants' rights as guaranteed by the quoted Constitutional provision. This ground of the amended motion for new trial is supported by affidavits of the witnesses for the defendants, who were subpoenaed, present and not used; affidavits of the defendants themselves and the affidavit of Mr. Foster, their attorney. It appears that it was not until after the verdict was rendered that the defendants told their attorney about these witnesses. The motion for new trial as amended was overruled and the defendants excepted. Counsel for the defendants concedes that there was sufficient evidence to support the verdict, and that the grounds of the amended motion based upon newly discovered evidence do not meet the requirements of law, and that the only question to be decided is whether or not defendants were denied their rights under art. I, sec. I, par. V of the Constitution. Where one accused of crime was upon his trial defended by an attorney at law appointed for this purpose by the presiding judge, it will, unless there be clear and convincing proof to the contrary, be presumed that this attorney did his duty in the premises and properly represented his client. See Fambles v. State, 97 Ga. 625 (2) (25 S.E. 365).
Although it is contended that the defendants on account of their ignorance, failed to tell their counsel about the witnesses, it affirmatively appears that they had sufficient intelligence to know about these witnesses themselves, to tell the sheriff about them, have him subpoena them, and have them present in court at the time of the trial. The record discloses that the attorney *Page 9 who was appointed by the court to conduct the defense of the plaintiffs in error did his full duty in the premises and properly represented his clients, and it further appears that any neglect resulting in the failure to use the witnesses for the defense, was the neglect of the plaintiffs in error and not that of their counsel.
The court did not err in overruling the motion for new trial.
Judgment affirmed. MacIntyre, P. J. and Gardner, J., concur.