151 Ga. 593 | Ga. | 1921
Madison Cummings was indicted for the offense of murder, and upon the trial of the case the jury returned a verdict of guilty, with recommendation that he be imprisoned for life in the penitentiary. A motion for new trial was made, and upon the hearing thereof it was overruled; to this judgment a writ of error to this court was sued out.
The only question presented for determination by this court is, whether the court abused its discretion in .overruling the motion
We are of the opinion that the court should either have granted the motion for a continuance or should have postponed the trial until another date. We think the written motion submitted on the afternoon of Wednesday should be treated as the motion for a continuance in this case, or as a continuation of the motion a part of which had been made in the morning. The motion made in the morning, while called a motion for a continuance, was merely the statement by counsel of certain grounds, counsel declaring that later in the motion he would make the technical showing as to witnesses, etc. But when counsel finished the oral statement indicating the grounds upon which the application was made, the court, immediately upon the conclusion of counsel’s .remarks, made the statement set forth above and checked the case for that morning. We do not think that the remarks made by counsel should be treated as a formal or complete motion, the making of which deprived them of the privilege of making the motion submitted in the afternoon.
Counsel, under the facts stated in their motion, did not have sufficient time to make proper preparation 'for the trial. So far as the motion for a continuance is based upon the indisposition
This court interferes very reluctantly with the judgment of the court below, overruling a motion for continuance. In considering motions based upon the ground that a continuance was denied, this court has kept steadily in view the fact that the statute provides that "all applications for continuances are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused, as the ends of justice may require.” Civil Code, § 5724. But where the facts submitted by the movant upon an application for a continuance show clearly that counsel for the defendant could not, in the exercise of reasonable diligence, make proper preparation for the defense, justice requires that the judgment refusing the continuance or the allowance of proper time for making preparation should be reversed. See Hunt v. State, 102 Ga. 569 (27 S. E. 670); Brown v. State, 120 Ga. 145 (47 S. E. 543). In the latter case it was said: "The constitution of this State provides that every person accused of crime shall have the privilege and benefit of counsel, and shall have compulsory process to compel the attendance of his own witnesses; but it is useless to appoint counsel to represent one so accused-unless the attorney so appointed is given at least a reasonable opportunity to prepare the case entrusted to him.” See also Harris v. State, 119 Ga. 114 (45 S. E. 973). In the last-cited case the judgment of the court below denying a continuance was affirmed, but in rendering that judgment this court pointed out that even in that case under its peculiar facts it would have been well if the judge had postponed the trial for a few days. Reluctant as we may be to reverse a case upon the
Judgment reversed.