120 Ga. 145 | Ga. | 1904
The accused was tried under an indictment for cheating and swindling, and was convicted. His motion for a new trial was overruled, and he excepted. In the view that we take of the case there is but one question made by the record which need be discussed here. From the'motion for a new trial it appears that the accused was arrested in Pierce county and brought to Coffee county, where he was confined in jail. He arrived in Coffee county at night, and on the following morning was brought into court for trial. He was unable, from poverty, to employ counsel, and the judge appointed an attorney of the Douglas bar to represent him. The attorney, after a consultation with the accused, of not more than five minutes, reported to the court and stated in his place that the accused was not ready to go to trial; that counsel had had no opportunity to have witnesses subpoenaed, nor to examine the iaw under which the accusation was brought against the prisoner; - and that no preparation whatever had been made for the defense. He further stated that if the court would pass the case until the following morning, in order that he might send for witnesses and prepare the defense, the accused would consent to go to trial before the court without a jury. The court then examined the accused under oath, and it is recited in the order passed on the motion “ that the defendant stated under oath that he desired that the case be not tried then, but that it be continued, because he had witnesses absent; that said witnesses were non-residents of the county of Coffee. Said defendant further stated what he expected to prove by the absent witnesses if he could obtain them, which facts appeared to the court to be of no value in establishing the defense of the defendant.” The motion to postpone the case until the following day was therefore denied, and the accused was placed on trial, with the result already stated.
In passing upon motions to continue or postpone, the trial judge is necessarily vested with a large discretion; but a careful review of the facts of this case convinces us thát the failure to at least postpone for one day was error. The particular acts of cheating and swindling with which the accused was charged have only very recently been made penal by the General Assembly, the act having been approved August 15, 1903 (Acts 1903, p. 90). Neither the bar nor the courts have as yet had an opportunity to become
Judgment reversed.