Opinion
A92A0638.
DECIDED JUNE 25, 1992. RECONSIDERATION DENIED JULY 7, 1992.
D. U. I. Upson Superior Court. Before Judge Miller.
Richard T. Bridges, Russell T. Bridges, for appellant.
W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.
Appellant was tried before a jury and found guilty of driving on the left side of a roadway in violation of OCGA § 40-6-45 and of driving under the influence in violation of OCGA § 40-6-391 (a) (1). He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.
1. Appellant moved for a continuance based upon the absence of a defense witness. However, appellant was unable to show that the absent witness had been served with a subpoena. Accordingly, there was no error in denying the motion for a continuance. Brown v. State, 169 Ga. App. 520, 521 (1) ( 313 S.E.2d 777) (1984).
2. The evidence was sufficient to authorize a rational trior of fact to find proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979).
3. An enumeration of error predicated upon the giving of an Allen charge is without merit. The charge was not rendered coercive by the trial court's inclusion therein of the statement that the case would have "to be determined by some jury at some time...." Concepcion v. State, 200 Ga. App. 358 (1) ( 408 S.E.2d 130) (1991). The charge included the cautionary instruction that the trial court was "certainly not asking, nor suggesting, that any person on [the] jury give up honestly held convictions." See Willingham v. State, 134 Ga. App. 603, 607 (5a) ( 215 S.E.2d 521) (1975).
4. The trial court's failure to give appellant's requests to charge is enumerated as error. However, written requests to charge were not timely submitted to the trial court, who was not made aware of appellant's requests until after the charge had been given. "All requests to charge shall be ... submitted to the court ... at the commencement of trial...." Uniform Superior Court Rule 10.3. Accordingly, appellant's "requests were not timely submitted and it was not error for the court to refuse to give them." Curtis v. State, 224 Ga. 870, 874 (9) ( 165 S.E.2d 150) (1968).
5. Appellant's remaining enumerations of error have been considered and found to be either moot or meritless.
Judgments affirmed. Pope and Johnson, JJ., concur.