Handberry v. State

Hall, Judge. The defendant appeals from his conviction of assault with intent to murder and sentence of two years. When the case was called for trial the defendant’s counsel made a motion for continuance on the ground that the defendant was sick and unable physically to go to trial. He presented evidence that the defendant that morning had been discharged from the hospital where he had been treated for severe back . pain and referred to a neurosurgeon. The defendant testified that he was hurting and feeling bad but could answer questions, and that he was willing for the court to determine whether the case should be tried or postponed. The defendant voluntarily appeared in court and his testimony did not support the grounds of the motion for continuance. The decision in Frain v. State, 40 Ga. 530, therefore, is not controlling. The trial court did not err in overruling the motion for continuance. Rawlins v. State, 124 Ga. 31, 51 (52 SE 1); Rowland v. State, 125 Ga. 792 (54 SE 694); Ogletree v. State, 22 Ga. App. 628 (96 SE 1049); Edenfield v. State, 26 Ga. App. 206 (105 SE 732); Warren v. State, 53 Ga. App. 221 (185 SE 385). The evidence was sufficient to support the conviction. Reece v. State, 60 Ga. App. 195 (3 SE2d 229); Fulmer v. State, 74 Ga. App. 298, 299 (39 SE2d 732); Tanner v. State, 86 Ga. [523] App. 767 (72 SE2d 549); accord Gilbert v. State, 90 Ga. 691 (16 SE 652); Gallery v. State, 92 Ga. 463 (17 SE 863); Shanks v. State, 80 Ga. App. 759, 760 (57 SE2d 357). Argued April 5, 1966 Decided April 21, 1966. Thomas M. Odom, for appellant. Cohen Anderson, Solicitor General, for appellee. Judgment affirmed. Nichols, P. J., and Deen,.J., concur.