5 Ga. App. 567 | Ga. Ct. App. | 1909
The defendant in the court below was found guilty of the offense of hog stealing, and sentenced to serve three years in the penitentiary. Error is assigned upon the judgment overruling his motion for new trial. When this case was previously before us (2 Ga. App. 660, 58 S. E. 1108), the judgment of the
In the present case the defendant’s uncontradieted motion for a continuance showed that the witnesses whose presence he desired would establish an alibi. From the note of the trial judge certifying the ground of the motion which assigns error upon the court’s, refusal to continue the case (in which note he disapproves the statement that no counter-showing was made to the defendant’s motion, and states that the solicitor-general and the clerk of the court stated in open court that the clerk had no authority to countersign subpoenas for non-resident witnesses for the defendant) it appears that the motion was overruled upon the ground that, the defendant had not exercised due diligence, in that he failed to have his subpoenas countersigned by the solicitor-general. For the reasons stated in the Ivey case, supra, this was immaterial, and. the judge, so far as we can see, did not exercise his discretion as. to the real merits of the motion for continuance. In Reid v. Stater, 23 Ga. 190, where there was a motion for a continuance upon the ground of the absence of a witness by whom the defendant expected to prove an alibi, the Supreme Court held it was error to. refuse the continuance, although the defendant had present another witness by whom he could prove the same facts. The witness, who was present was impeached upon the trial, by proof of bad character, and the Supreme Court held that the lower court should, either have granted the motion or have exacted a promise from the State not to introduce evidence to destroy the credit of the-witness that was present. In delivering the opinion of the court,. Judge Benning, after adverting to the fact that in the case of defense by an alibi, evidence of one witness will frequently be-cumulative of that of another, and that there can not well be too. much evidence to make out a satisfactory alibi, says: “A motion for. a continuance, put on the ground of the absence of a witness,, ought to be granted if his testimony will be material. So says the-'36th common-law rule.” In Maddox v. State, 32 Ga. 584 (79 Am.
The ground of the motion assigning error upon the refusal of the court to comply with the first request to charge is not approved
All of the assignments of error upon the ground that the court erred in admitting testimony to the effect that several of the wit-messes heard shots and saw certain persons near the scene of the alleged crime, as well as those assignments which allege error on the refusal of the court to exclude this testimony at the conclusion of the evidence, depend upon the correctness of the contention that there is a fatal variance between' the description of the hog as laid in the indictment and the hog discovered to have been killed and stolen. We are all agreed that the admissibility of this testimony (to which objection was offered, and a motion to exclude which was later overruled) depends upon whether there is a material variance. My colleagues think that there is no material difference between a “barrow hog, color white, and black spotted,” and “a black and white spotted hog.” For myself, disregarding my personal views, it is my opinion that, under the decisions of the Supreme Court, there is a variance, and that the defendant would be entitled to a new trial upon that ground. If the decisions of the Supreme Court upon the subject had not required such strict conformity between the descriptive averments of hogs and cattle alleged to have been stolen and the proof establishing their identity, I confess I would not attach much importance to the difference between a “hog, color white, and black spotted,” and “a black and white spotted hog,” though I believe that two hogs filling these two descriptions and placed in the same pen could readily be distinguished from each other. From a judicial standpoint I am controlled by the rulings in Crenshaw v. State, 64 Ga. 449, Wiley v. State, 74 Ga. 840, Hardy v. State, 112 Ga. 18 (37 S. E. 95), Berry v. State, 92 Ga. 48 (17 S. E. 1006), and citations, and Johnson v. State, 119 Ga.