65 Ga. 332 | Ga. | 1880
The defendant was indicted for the crime of murder, and was found guilty of manslaughter, and sentenced to fifteen years imprisonment in the penitentiary. He made a motion for a new trial on various grounds therein alleged, affecting the charge of the court and' irregularities of the jury, but mainly on the ground that the court committed error in refusing to grant his application for a continuance.
1. 2. There seems to have been no irregularity either of the jury or the bailiff, and no -word spoken in their hearing which could have affected their verdict. There may have been inaccuracies in the charge of the court as to the portions excepted to, considered.by themselves, but construed in the light of the entire charge, they do not seem to be of that gravity which would imperatively require the grant of a new trial, especially in view of the evidence before tire jury.
In a note to many of the grounds which he certifies, the judge refers to his charge at length, which is incorporated in, and made part of, the motion for a new trial; but it would be the better practice before granting the rule nisi, that the court should require counsel to perfect each ground of the motion, and make it conform to the charge in itself, without reference to outside matters in the charge at length. However, in the view we take of the case, it is not necessary to scrutinize these exceptions closely, because a new trial will be granted on the continuance, and the presumption is that if there be any serious inaccuracy in the charge, it will be corrected.
3. The motion for a new trial on the ground of error in
Second, because of. the absence of John Speer, a material witness for defendant, by whom he expected to prove that deceased, previous to the alleged shooting, had threatened to take the life of deponent if ever deponent passed down the road in which the homicide is said to have been committed, and that said John Speer commu
Which motion was amended as follows:
Defendant, William W. Brown, amends his showing for a continuance, and says this showingis made in good faith for the purpose of getting the testimony mentioned in the affidavits, and that he cannot go safely to trial without the evidence of the two witnesses named.
John M. Brown on oath says, that he has heard the above named witnesses say that they would swear as herein-above stated, and that said witnesses told him that they would come to court and testify as stated in affidavit of William Brown whenever requested or notified to attend said court.
The issue before the jury was whether the defendant shot the deceased in self-defense, against an attack made on him with a deadly weapon, such as an open knife, with intent, to commit a serious injury on the person of the prisoner, or whether he shot him when there was no such assault and no such imminent and impending danger as to excite the fears of a reasonable man, that it was necessary to shoot to protect himself from serious bodily harm.
On that issue proof of previous threats, communicated to the prisoner, and of an actual assault on the prisoner with a
They have been granted in civil cases when witnesses were without the jurisdiction, and no law of the state where they resided was shown to compel them to testify. 30 Ga., 816 ; 29 Ga., 271.
Can it be that the law will allow a party to continue for the absence of testimony in civil cases, where but money or property is at stake, and refuse it where liberty and life are involved ? It would seem not, from authority in some of our sister states. See 7 Cowen, 369; 41 Ill., 486.
While the American states are exclusive in their jurisdiction and stand to each other much as foreign states, yet we cannot shut our eyes to the great fact that they constitute in many respects but one country, and that only imaginary lines of boundary—not even a river or creek—-mark the two jurisdictions. Shall justice be defeated and a fair trial fail for want of witnesses just over the line, who are willing to attend the trial and will attend in a week or two ?
It cannot be. Whilst therefore the general rule is that cases will not be continued for absence of witnesses outside the reach of the compulsory process of the court, yet where there has been no lack of diligence, where the witness has promised to attend, where the testimony is of great materiality, where the application is not made .for delay, but there is a reasonable expectation that the testimony will be on hand within a reasonable time, the case should be either continued for the term or postponed to a day certain, so as to give the defendant an opportunity of procuring the witness.
As to the sufficiency of such a showing the presiding judge will 'determine, and when he acts on it this court will, if at all, very reluctantly interfere with his discretion. In this case, he did not apply his discretion to the particular case made by the affidavits, but felt bound by the general rule expressed in 10 Ga. So that we do not say he abused his discretion; for he exercised none, but yielded it to what he regarded an inflexible rule of law.
We .forbear to express any opinion on the evidence; because a new trial is awarded on the absence of witnesses who may change the aspect of the case in substantial particulars, and because, as the prisoner is awarded a new hearing, it is important that he have one without any intimation from us as to his guilt; for in that event it would hardly be what the law intends a new trial to be— NEW—without regard to that old trial which this judgment annuls.
The judgment is reversed solely on the ground that the court erred in refusing the new trial because the two witnesses were in Alabama; it being the opinion of this court that while, as a general rule, cases should not be continued where'absent witnesses are beyond the jurisdiction of the court, yet the rule is not so unbending as to deprive the judge of the right of exercising his discretion favorably when there is a probability of getting the witness to attend, and the ends of justice demand the attendance.
Judgment reversed.