Rowland v. State

Bloodworth, J.

The court properly overruled the ground of the motion for a new trial based upon the refusal to continue the case on account of the absence of a witness. This ground of the motion shows that a new trial had been granted the accused. When this is true, section 5849 of the Civil Code of 1910 provides that witnesses shall be given “notice of the fact.” Although this ground contains a statement by the defendant that “when a new trial was granted in this case I immediately wrote Waddell Renfroe at his correct address in Macon, Georgia, that I would expect him to be present as a witness in this case at the present time,” this was not sufficient. This court, citing a number of cases to support the proposition, held, in Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (102 S. E. 358), that “before the presumption of the receipt of a letter by the addressee arises, the evidence must affirmatively show that the letter was written, properly addressed and stamped, and mailed.”

Even if we should concede (which we do not) that the admission of the evidence of which complaint is made in the motion for a new trial was error, it was not such an error as, under all the facts and circumstances of the case, would require the grant of a new trial.

The accused being present when the verdict was received, under the particular facts of this case a new trial will not be granted because of the absence of his counsel.

This court in Steele v. State, 24 Ga. App. 276 (100 S. E. 656), held: “Section 412 of the Penal Code penalizes any disturbance of a congregation of persons lawfully assembled for divine worship, either during the service or while they are dispersing after the conclusion of the service, and until all the congregation have left the church building and the church grounds. Brown v. State, 14 Ga. App. 21 (80 S. E. 26); Minter v. State, 104 Ga. 743 (30 S. E. 989). In the instant case the evidence authorized the jury to find that the congregation of persons disturbed by the defendant was lawfully assembled for divine service, and that the disturbance occurred before all the congregation had left the church grounds.” See Folds v. State, 124 Ga. 167 (5) (51 S. E. 305). Under the rulings in the foregoing cases, .there was evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.