Johnson v. State

25 Ga. App. 471 | Ga. Ct. App. | 1920

Lead Opinion

Per Curiam.

1. The amendment to the motion for a new trial (construed as a whole) shows that the defendant’s counsel made an informal request or motion that the case be passed until the following day, and followed this by a formal motion for a continuance of the ease on account of the absence of certain witnesses. Upon the hearing of the motion the defendant failed to state that the witnesses were absent without consent, or that he expected to be able to procure their testimony at the next term of court. The motion, therefore, did not come up to all the requirements of the statute, and the court did not err in overruling it. While the defendant’s attorney, during the hearing of the motion, stated that he had not had time to prepare the case and would be ready to try it on the following day, his formal motion for a continuance did not include this ground, but was based entirely upon the ground of absence of witnesses. Moreover, it appears from the record that the defendant had been arrested and bound over for this crime some weeks before his trial, and that he made no effort to have the absent witnesses subpoenaed until after he was indicted. Under these circumstances this court can not say, as a matter of law, that the defendant exercised all proper diligence in the premises and that the court erred in overruling the motion for a continuance.

2. The evidence demanded the defendant’s conviction, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

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Dissenting Opinion

Luke, J.,

dissenting. I think, under the showing, the trial of the case should have been postponed.