Fox v. State
9 Ga. 373
Ga.
1851
Check Treatment

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The new trial ought to have been granted, because there was error in not allowing the continuance. The plaintiff in error had used diligence to procure the attendance оf his witness. He had been subpoenaed — had been even recognized to appeаr • he had, through his counsel, tendered to the witness his expenses, and the testimony was material. The party swore that he expected to prove by the absent witness that he heard Simpsоn, the witness upon whom he understood the State would mainly ‍​​‌‌​‌‌‌‌‌​​‌​‌​​‌‌​​​‌‌​​‌​​‌​​‌‌‌‌​‌‌‌‌‌​​‌‌​‌‍rely for a conviction, say “ that if hard swеaring would send the defendant to the penitentiary, he should go.” It does not appear thаt any other witness would prove the same thing. The testimony of the absent witness, then, was wanted to imрeach the credibility of a witness upon whose evidence the defendant understood thе State mainly relied for a conviction. All proper diligence was used to have the witness at the trial. It is clear that the showing for a continuance was complete.

[2.] Why, then, was it not granted ? It appears from the re*376cord before me, that the presiding Judge gave as reasons for refusing the new trial, ‍​​‌‌​‌‌‌‌‌​​‌​‌​​‌‌​​​‌‌​​‌​​‌​​‌‌‌‌​‌‌‌‌‌​​‌‌​‌‍that he did not plaсe much confidence in the truth of the defendant’s statements. “ Knowing, as he had (in the language of the Judge) for many years, the witness Simpson, whose testimony was sought to be assailed, and having no sрecial reason to confide in the integrity of Fox, the defendant. If a witness intended to act out the corruption ascribed to Simpson, he would not be likely to declare his intentions in advance, in the presence of others, and the facts disclosed on the trial left his prеconceived opinions of the integrity ■of Fox unchanged.” Here, then, are the reasоns which influenced the mind of the Judge, in refusing the continuance. They are not only not sufficient, but develop a ground of action in •such cases not warranted by the law. Both the application for the continuance and for the new trial were, it is true, addressed to the sound discretion of the Court. But the discretion in such cases cannot override a clear legal right or disрense with a plain rule of law. If the defendant was by law entitled to the continuance, the Cоurt had no discretion to refuse a new trial. The right to a continuance gave him the right to a new trial. There ‍​​‌‌​‌‌‌‌‌​​‌​‌​​‌‌​​​‌‌​​‌​​‌​​‌‌‌‌​‌‌‌‌‌​​‌‌​‌‍was, as we have seen, no legal objection to the showing for a continuance. Can the Court, when the showing is sufficient, refuse it on account of his personal knowledgе of the character of the party making it, and of the witness whose testimony that party is seeking to assail — a knowledge not drawn from evidence before the Court, but from his private sources of information ? He, beyond all controversy, cannot. He has no discretion to aсt upon such knowledge. The discretion allowed in applications for a continuance must be within the law, and must spring out ■of, and be bounded by what transpires in the case. It cannot be justified upon what the Court, as a man, may or may not know. Justice is administered according to genеral rules; rules which, if applicable in a single case, must be applicable in all like сases, no matter who are the parties, or whattlieir character. If the Court may dispеnse with them because of his personal knowledge of the character of the pаrties before him in one case, he may in :all cases. And this would be equivalent to dispensing with them *377altogether. The rights of parties — the administration of justice — would depend then, not upon laws whiсh are uniform and equal in their application to all men, and which are prescribed, but uрon the idea which a Judge may entertain of the integrity of parties, or the purity of witnesses. It is аssuming, and that too, in advance of the trial, the province of the Jury; thatis, the right to pass upоn the credibility of the witness. Upon the proofs at the trial, the Judge^oulSTmeJuTright to say whether the witnеss, Simpson, be entitled to be believed ; much less has he the right before the trial, upon a motion for. a continuance, ‍​​‌‌​‌‌‌‌‌​​‌​‌​​‌‌​​​‌‌​​‌​​‌​​‌‌‌‌​‌‌‌‌‌​​‌‌​‌‍and upon his private knowledge of his character, to assume that he cannot be _imgeached, and unon that knowledge, coupled with a want of cоnfidence in thejntegrity of the party, founded likewise on his personal knowledge of his cKarаcter, refuse a continuance. We are ignorant of the character of both the witness and of the party in this case. It may or may toot be true that the one is very good and thе other veiy bad. Let it be conceded that Fox is wanting in integrity — that he is a great scoundrel — yet he is entitled to be tried by the same rules of law by which an innocent and upright man would be tried.

Let the judgment be reversed.-