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LYONS v. THE STATE.
36402.
Using profane and obscene language, etc. Before Judge Kelley. White Superior Court. June 27, 1956.
GARDNER, P. J.
1. The evidence is ample to support the verdict.
2. None of the special grounds argued by counsel are meritorious.
The defendant was indicted in two counts, Count 1 charging him with using profane, coarse, opprobrious and abusive words and language, thereby causing a breach of the peace, and Count 2 charging him with using obscene, vulgar, and profane language in the presence of a female. A jury returned a verdict of guilty as to each count. The defendant filed a motion for new trial and later amended it by adding fourteen special grounds. This motion was denied on each and every ground, and it is on this judgment that the case is before this court for review.
Mrs. F. T. Kennedy testified substantially that ten women scout leaders, while camping in White County, were awakened late at night (about 2 a.m.) by loud voices; that the defendant and others were in a car, the defendant being the driver thereof; that the defendant said: "Boys, this is where we are going to spend the night." The defendant said also: "Get the God----d---- bed rolls out, this is where . . . don't you need to sleep with us? . . . Let's see how close we can come to the G----d---- tents . . . We can drive the car . . ." There was testimony that the men in the car remained in and around the camp for 45 minutes to an hour before they were persuaded to leave; that the defendant (and others with him) made statements really somewhat like those set out above; that the defendant was driving the car when it arrived and when it departed; that the defendant was identified when two of the men got out of the car and stayed out for quite a while, thus allowing the lights in the car to go on and to stay on for sometime while the men were out of the car with the car door open.
Mrs. C. A. May, Jr., testified that the six men who came to the camp were under the influence of intoxicating liquor; that the defendant was the driver of the car; that there was "a great deal of cursing" and that the driver came so close to the tent that the car knocked a tent brace down; that the men remained around the camp about an hour; that the camp where all this took place is shown on the maps prepared by the Appalachian Trail Book as "White County Recreational Area"; that the ranger told them that the camp site was in White County. The witness swore that the driver of the car was the defendant on trial; that the defendant himself said that "they would get the bed rolls out and spend the night"; that the defendant was the driver and the one wanting to run over the "G----d---- tents." The witness positively identified the defendant.
Mrs. Mildred Groom testified substantially as did the two witnesses previously mentioned.
Mr. Frank Headin, of the State Game and Fishing Commission, testified as to the location of the camp, stating that he had been in that locality for five years and that "when I have any business there [meaning the camping area in question], I brought it to White County." The Sheriff of White County testified that he considered the Tray Mountain camping area to be in White County, and that the maps show such to be true.
Bill Elrod testified that he had lived in the vicinity since 1919; that he was familiar with the Tray camp site; that he had camped there weeks at a time and that the camp site was in White County. There was some testimony to the effect that the camp site was in Towns County.
1. There is sufficient evidence to sustain the verdict of guilty. The general grounds are not meritorious.
3. Special grounds 3, 12 and 13: Special ground 3 assigns error because it is contended that the evidence on the trial of the case did not establish venue as being in White County; that there was no positive testimony that the crime occurred in White County. A reading of the evidence, quoted hereinabove, will show that several competent witnesses testified that the camp site was in White County, such witnesses including the Sheriff of White County and the resident game and fish warden. In support of the contention that the venue was not properly established, counsel for the defendant cites the following cases: Gosha v. State, 56 Ga. 36 (2); Smith v. State, 69 Ga. 768; Cooper v. State, 106 Ga. 119 (2) (32 S. E. 23); Green v. State, 110 Ga. 270 (34 S. E. 563); Murphy v. State, 121 Ga. 142 (48 S. E. 909); Holden v. State, 144 Ga. 338 (87 S. E. 27); Garrett v. City of Atlanta, 152 Ga. 675 (110 S. E. 886). We have read these cases, keeping in mind the evidence on the question of venue in the case before us, and we are of the opinion that none of the cases show cause for reversal of the instant case. Venue was sufficiently proved. Special ground 3 is not meritorious. It follows that special grounds 12 and 13 are not meritorious. As to venue, see the following cases: Horn v. State, 62 Ga. 362 (2); Kicklighter v. State, 76 Ga. App. 246, 251 (45 S. E. 2d 719); Speight v. State, 80 Ga. 512 (2) (5 S. E. 506); Eaton v. State, 83 Ga. App. 82, 85 (4) (62 S. E. 2d 677); Lee v. State, 84 Ga. App. 12 (65 S. E. 2d 459); Shumann v. State, 84 Ga. App. 585, 587 (66 S. E. 2d 152). See also Code 27-1103.
4. Special ground 4 assigns error because the court denied a motion for continuance in that there was not sufficient time for the defendant to produce material witnesses. In our opinion this ground is incomplete in and of itself. See in this connection Newsome v. State, 25 Ga. App. 191 (102 S. E. 876). A reading of the record shows that the motion fails in several respects to meet the eight tests prescribed by Code 81-1410. A failure in any of these respects is normally, and we think in the instant case, fatal to the motion. See Setzer v. State, 76 Ga. App. 509 (2a) (46 S. E. 2d 603), and James v. State, 71 Ga. App. 867, 869 (32 S. E. 2d 431). In matters such as raised by this ground, diligence is required on the part of the party to subpoena the witness. Reese v. State, 44 Ga. App. 251 (2) (161 S. E. 156). "It is not an abuse of discretion to refuse to grant a continuance upon the ground of the absence of a witness, where it appears that the absent witness was not subpoenaed, and that the applicant, by exercise of due diligence, could have had the witness subpoenaed." Clark v. State, 52 Ga. App. 61 (1) (182 S. E. 195). It must be kept in mind here that the defendant was arraigned in October, 1955, and was indicted in April, 1956. He was permitted to give bond. He knew in October, 1955, that there was a charge pending against him on each count of the indictment. By going to trial, waiving irregularities as shown hereinabove, for continuance, he put himself in court and could not thereafter complain as shown in this ground. He did not show diligence as to his alleged rights. The court did not abuse its discretion in denying the motion for a continuance.
5. Special grounds 5, 6, 7, 8, 9, 10, 11 and 14 are apparently abandoned, since they are not argued in the brief of counsel for the defendant and counsel did not appear in person to argue.
The court did not err in denying the motion for new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Jeff C. Wayne, Solicitor-General, Sidney O. Smith, Jr., contra.
James G. Hampton for plaintiff in error.
DECIDED NOVEMBER 16, 1956.
Saturday May 23 02:30 EDT


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