Amerson v. State, 18 Ga. App. 176

Amerson v. State

18 Ga. App. 176 | Ga. Ct. App. | 1916

Bkoykes, J.

Two continuances of this case had been granted to the defendant at previous terms of the court. A third continuance was moved for on account of the absence of a witness whose possible testimony the defendant discovered in July, 1915. The de*178fendant applied to the clerk of the court for a subpoena on August 19 thereafter, which he directed the clerk to deliver to the sheriff for service. On September 6 the motion for a continuance was made, and the defendant then testified that he had seen the witness two or three weeks before, but it does not appear that he made any inquiry at that time whether the witness had received the subpoena, nor did he make any personal effort to serve the witness or further effort to have him served, or any inquiry of the sheriff or other officers as to whether service had been effected or not. On August 30 the clerk issued a second subpoena on his own motion, and this was left by a deputy sheriff at the home of the witness, but no personal service of any subpoena was effected upon him. The defendant was at large under bond, and a greater degree of diligence on his ¡oart was required than if he had been incarcerated and unable personally to prepare his case for trial. See Watts v. State, 14 Ga. App. 600, 603 (81 S. E. 903). Motions for continuance made subsequently to the term at which the indictment is found stand upon a different footing from such motions made at the first term. Haines v. State, 8 Ga. App. 627 (70 S. E. 84); Patten v. State, 10 Ga. App. 30 (73 S. E. 521). Under these facts it does not appear that full diligence to procure the absent witness was exercised; and for this reason, as well as on account of the other facts disclosed by the record, the trial judge did not abuse his discretion in refusing the continuance. See Cruce v. State, 99 Ga. 84 (1); Nail v. State, 143 Ga. 595 (83 S. E. 336).

The other headnotes do not require elaboration.

Judgment affirmed.

Bussell, C. J., dissents.