Salmons v. State

118 Ga. 763 | Ga. | 1903

Lamar, J.

While some courts have ruled that a continuance will not be granted on the ground of the absence of impeaching or sustaining witnesses, this court has never directly passed on the point. In Studstill v. State, 7 Ga. 10, and Fox v. State, 9 Ga. 375, the absent witnesses were not to prove character, but specific impeaching facts and statements. The question is one peculiarly within the discretion of the trial judge, and certainly in every such case it should appear that there were no persons present or accessible who could give similar testimony; and for the reason that only general character could be inquired into, and that involves the idea that it could be proved by many witnesses. If the absence of some of the many who had been or could have been summoned was a ground for continuance, it could almost always be secured, with the result of defeating the policy of the law which favors speedy determination of pending cases. The showing here was defective in that it failed to disclose that there were no other witnesses present by whom the attacking party could satisfactorily prove the same facts. Allen v. State, 10 Ga. 86; Anderson v. State, 72 Ga. 98; Phelps v. State, 75 Ga. 511 (3).

In Maynard v. Cleveland, 76 Ga. 52, Ryder v. State, 100 Ga. 528, and Williams v. Fambro, 30 Ga. 232, the absent witnesses were not to testify as to the character for truth and veracity of an}r one concerned in the trial; but in one case as to the sanity of the accused ; in another as to the character of a slave, which illustrated the question of his money value, and also a fact relied on by the defendant, who was sued for killing him. In the other it appeared that the plaintiff would testify to one state of facts, the defendant to an exactly opposite state of facts, and the evidence of the absent witness would tend to overcome this equipoise. Nothing of the kind appears in the motion here, and there was no abuse of discretion in refusing a continuance. Civil Code, § 5488. Compare McCurdy v. Terry, 33 Ga. 55; 4 Enc. Pl. & Pr. 853.

Judgment affirmed.

All the Justices concur.