Opinion
41902.
ARGUED APRIL 5, 1966.
DECIDED APRIL 21, 1966. REHEARING DENIED MAY 4, 1966.
Obstructing sidewalk, etc. Spalding Superior Court. Before Judge McGehee.
Howard Moore, Jr., for appellant.
Beck, Goddard, Owen Smalley, Robert H. Smalley, Jr., William H. Beck, Jr., for appellee.
When counsel, appearing on behalf of the defendant at the trial five days after the defendant's arrest for violation of a municipal ordinance, made a motion for continuance but stated no ground for the motion, the trial court's denial of a continuance did not deprive the defendant of the right to assistance of counsel guaranteed by the Constitutions of the United States and of the State of Georgia.
ARGUED APRIL 5, 1966 — DECIDED APRIL 21, 1966 — REHEARING DENIED MAY 4, 1966 — CERT. APPLIED FOR.
The defendant appeals from a judgment of the superior court denying his petition for certiorari and affirming his convictions for violations of certain ordinances of the City of Griffin, including an ordinance prohibiting persons from obstructing sidewalks by standing in crowds on them to the inconvenience and annoyance of the public. The defendant was sentenced to pay a fine of $37 or serve 50 days in jail.
The defendant contends that he was denied the assistance of counsel which he had retained, in violation of his rights under the Fourteenth Amendment to the Constitution of the United States.
The record shows that the defendant was arrested on June 21, 1965, on charges of violation of the ordinances and that his case came on to be tried on June 28, 1965, when the defendant had been out on bond for five days. The trial court denied a request for continuance made on the day of the trial by an attorney whom the defendant said he wanted to represent him.
Our courts recognize the criminal defendant's constitutional rights to benefit of counsel and reasonable time to prepare his case. Fair v. Balkcom, 216 Ga. 721, 725 ( 119 S.E.2d 691); Blake v. State, 109 Ga. App. 636 ( 137 S.E.2d 49); Smart v. Balkcom, 352 F.2d 502, 504 (5th Cir. 1965). These rights extend to State misdemeanor prosecutions. Harvey v. Mississippi, 340 F.2d 263, 271 (5th Cir. 1965); McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965). And for the purposes of this decision we will assume, but need not decide, that they apply in prosecutions for violations of municipal ordinances.
The present record (including the untraversed answer to the petition for certiorari) shows that the court did hear counsel appearing for the defendant and making a motion for continuance, and does not show that counsel stated any ground in his request for a continuance.
Our law governing continuances has always required that a request for continuance be supported by a showing on oath of sufficient cause, that the principles of justice require a continuance of the case. Code § 27-2002. When it does not appear that any reason was stated to the trial court why it should not then proceed with the trial of the case, the judgment of the trial court in denying a requested continuance will not be reversed. Delk v. State, 99 Ga. 667, 671 ( 26 S.E. 752).
The record shows no facts from which we could conclude that the trial court acted contrary to law or arbitrarily in denying the continuance requested by counsel who was representing the defendant in making the request. The fact that the defendant was tried five days after his arrest does not per se show that he was deprived of the opportunity to confer with his counsel or prepare his case. Counsel for the defendant candidly states in his brief: "Admittedly, the record does not show the grounds upon which appellant's counsel moved the trial court for a continuance."
The Constitution of the United States, Amendment XIV ( Code § 1-815) and the Constitution of the State of Georgia, Art. I, Sec. I, Par. III ( Code Ann. § 2-103) require that a criminal defendant be brought to trial by due process of law, in other words, "according to the law of the land." "Fundamentally it [due process of law] assures that every citizen shall have the benefit and protection of the general rules that govern society, through law in its regular course of administration through courts of justice." Allen v. State, 110 Ga. App. 56, 63 ( 137 S.E.2d 711). See also Brown v. State, 110 Ga. App. 401, 405 ( 138 S.E.2d 741). We cannot say from the record that this defendant did not have the benefit and protection of the general rules applied by our courts in the regular course of the administration of justice.
The action of the trial court was not a denial of the defendant's constitutional right to the assistance of counsel.
Judgment affirmed. Nichols, P. J., and Deen, J., concur.