5 Ga. 48 | Ga. | 1848
By the Court.
delivering the opinion.
There are two grounds of error assigned upon the record in this case. First, in refusing to grant the defendant a continuanee of his cause. Second, in refusing to the defendant, the right to examine Green, a witness, as to threats made by Dill, upon whom the assault is alleged to have been committed.
The 17th section of the 14th division of our Penal Code, declares, that “ every person against whom a bill of indictment is found, shall be tried at the term of the Court at which the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice should require a postponement of the trial; and then, the Court shall allow a postponement of the trial, until the next term of the Court; and the Court shall have power, to allow the continuance of ciiminal causes from term to term, as often as the principles of justice, may require, upon sufficient cause shewn on oath.” Prince’s Dig. 660. The offence is charged in the indictment, to have been committed on the 21st day of April, 1848 ; the bill of indictment is returned on the 24th,
It will be perceived from the Penal Code, that it is not alone for the absence of a witness or witnesses, that the Court is authorized to grant a continuance, but if the principles of justice shall require a postponement of the trial, then the Court shall allow a postponement of the trial, until the next term of the Court. In many of the States, provision is made for a change of venue, when the defendant will make oath he cannot obtain a fair trial in the county where the offence is committed, hut here the offender must be tried in the county in which the criminal act was done, no matter what may be the excitement or prejtsdice in the public mind against him. Had the application for a continuance in this case, rested upon that ground alone, we are inclined to the opinion it should have been granted, at least at the first term of the Court, when the offence had been so recently committed; but when we take into consideration all the facts stated in the defendant’s affidavit, in connexion with that ground, we have no hesitation in declaring it as our judgment, that the principles of justice, in the language of the Code, required the postponement of the trial until the next term of the Court. The majesty of the criminal laws of the country, will best be maintained and vindicated, by giving to each offender a fair and impartial trial, reasonable time
When it is apparent that the greatest criminal has had a fair and impartial trial, and is convicted according to the laws of the land, the public judgment acquiesces in such conviction ; whereas, when he has been convicted under circumstances ofprejudice and excitement, forced into a trial without preparation for his defence, the sympathies of the community will be excited in his favor, and he will be viewed, rather as a martyr than as a felon, deserving punishment, and the moral effect of his conviction, will be greatly weakened.
Let the judgment of the Court below be reversed, and a new trial granted.