185 Ga. 335 | Ga. | 1938
Lead Opinion
Clarence May was convicted of the murder of Mack Lewis, with a recommendation to the mercy of .the court. His motion for new trial was overruled, and he excepted. Several persons testified that they were present and witnessed the tragedy; and while there was some variation in the testimony, the jury were authorized to find that the killing occurred under substantially the following circumstances. Mack Lewis was standing or sitting in front of a restaurant in conversation with others, when Clarence May approached and asked Lewis the question, “Did you mean what you said, that I had better . . have my pistol?” Lewis replied, “Forget it,” and started to go into the restaurant, when the defendant shot and killed him. In his statement to the jury May contended that he had to shoot the deceased to save his own life. He stated that he and Lewis had been good friends until a few hours before the killing, when Lewis had become unjustifiably angry with him and told him, “You better damn sure have your gun the next time we meet, because I am going to kill you.” He further stated that he knew that Lewis had a gun in the restaurant, and that when he asked Lewis if he meant what he had said about the gun, Lewis dashed for the door, and the defendant shot him.
The defendant does not insist upon the general grounds of his motion for new trial, but relies on several special grounds, as follows: (1) Because the court overruled the defendant’s motion for a continuance, based upon the absence of three witnesses who in the forenoon of the day of the homicide heard the deceased make threats that he intended to kill the defendant, and who communicated such threats to the defendant before the commission of the homicide in the afternoon. In response to this motion the solicitor-general 'stated that he would admit that the witnesses would each testify as contended by the movant, and that such was the “truth of the case.” (2) It is contended that the court erred in refusing to declare a mistrial because of improper cross-examination- of character witnesses. The defendant introduced a witness who testified that he knew the general character of the defendant,
The judge did not err in overruling the motion for a continuance. The Code provides that “no continuance shall be allowed in any court on account of the absence of a witness or for the purpose of procuring testimony when the opposite party is willing to admit, and does not contest the truth of, the facts expected to be proved; and the court shall order such admission to be reduced to writing.” Code, § 81-1411. Dnder this section it has been held that “where the prosecuting officer admits the truth of facts to which it is claimed absent witnesses would testify, it is not error to overrule a motion for a continuance based on the absence of such witnesses.” Watson v. State, 118 Ga. 66 (2) (44 S. E. 803). The defendant has not complained of any failure on the part of the court to order the admission of the solicitor-general to be reduced to writing. In view of the statute there is no substantial merit in the contention that such admission “did not compensate for the absence of the sworn testimony and the presence of the witnesses.” Nor did the action of the court deprive the defendant, as contended, of any constitutional right to have compulsory process to obtain the testimony of his witnesses. Roberts v. State, 94 Ga. 66 (2), 72 (21 S. E. 132); Smith v. State, 118 Ga. 61 (44 S. E. 817).
Special grounds 2, 3, and 4 of the motion for a new trial relate to cross-examination of witnesses, and not to improper argu
The court did not err in overruling the motion for hew trial.
Judgment affirmed.
Dissenting Opinion
who dissents upon the ground that the court erred in not declaring a mistrial because of the remark of the