Johnson v. State

65 Ga. 94 | Ga. | 1880

Jackson, Justice.

The verdict in this case was guilty, a motion was made íor a new trial, which was overruled, and the defendant excepted.

1. The first ground is that the court erred in overruling the defendant’s motion to continue. Motions to continue are left in the discretion of the superior court to a great extent, and must be so left from the very nature of the business—the witnesses sworn, the defendant’s manner, and all the circumstances of a nisi prius trial. The presiding judge can decide such matters much more satisfactorily and justly than we can, and therefore this court rarely interferes with his discretion in such matters.

The court in this case permitted a counter-showing in respect to what the witnesses would swear. In Horne vs. The State, February term, 1879, ^ was ruled that a counter-showing should not be allowed to the point that other witnesses would swear to a state of facts different from what the witness who was absent would swear; but this is not that case. Here the witnesses swear what these witnesses had already sworn on a former trial, and of course the presumption is that they will swear the same thing again. The statute allowing a counter-showing is broad, and while the judge may not try the merits of the case on an issue of continuance, and thus take from the defendant the right of trial by jury practically, yet he may try all such issues as the question of the subpoena of the witness, his sickness, his absence from the county, or what he would swear if present, drawn from what he did swear on another occasion when the same transaction was in question. And such is the principle intended to be announced in the case decided at the February term, 1879. Code, §3531.

2. The defendant pleaded former jeopardy in this, that defendant had been acquitted of the murder of the mother of the subject of this assault in the transaction which was the same in both cases. The plea was properly overruled and stricken. Even if the mother had. been killed at the very time and place when and where the daughter was assaulted, it would not have been the same offense, and the plea would hardly be held good ; but the mother was killed at the house, the daughter some distance from the house was assaulted, which puts this case beyond doubt. 47 Ga., 568.

3. The rule is settled that no questions but those fixed by the statute will be allowed, unless the juror is put upon triors, the judge being now the trior; therefore the court was right not to permit the questions outside of the statute to be asked the jurors on the voir dire—Cox vs. The State, last term, and many preceding cases.

4. What the person assaulted said, though half unconsciously, so soon as she was found on the day of the assault, at the moment of the restoration of sensibility, is part of the res gestee and admissible. 32 Ga., 672.

5. The charge of the court, including his addendum to the defendant’s request, appears to us to be a fair exposition of the law, and there is evidence enough to sustain the verdict. The question was whether or not the witness who swore to the transaction, and who identified the defendant as her assailant was worthy of credit, her mind and memory considered, and the jury found that she was, and the presiding judge affirms the finding, and the law, therefore, leaves us no option but to affirm it too.

Judgment affirmed.