Cunneen v. State , 95 Ga. 330 ( 1895 )

Lumpkin, Justice.

1. The court overruled a motion for a continuance, which was based on the ground of the absence of a material witness for the accused. The substance of the showing for a continuance is set forth by the reporter. An examination of it will show that it was in all respects complete, and that the expected testimony of this witness was vitally important to the accused upon the merits of the case. This the trial judge doubtless recognized, but refused the continuance, it seems, because it appeared in a counter-showing to the motion that, on a previous occasion, the witness had made a statement, not under oath, inconsistent with what the accused deposed he was able and expected to prove by this witness.

The court ought to have continued the case, and thus have allowed the accused the opportunity to have the jury pass upon the credibility of the witness. He might have denied making any statements inconsistent with his testimony on the stand; or, even if he admitted making contradictory statements, it would at last be a question for tbe jury to determine what portions, if any, of his. evidence they would accept as true, and what portions they would disregard. We are constrained to grant a new trial because of the overruling of the motion to continue. It is impossible for us to say what the verdict would have been had the absent witness been present and had he testified. It is certain that if the jury believed what the accused swore he could prove by this witness, there could have been no conviction.

2. It is quite clear that no error was committed in ruling out the question and answer set forth in the second head-note. The effort was to prove, by the witness that the accused did not himself carry on the business of conducting a lottery, and the form of the question, and the terms in which the answer was couched, show that it was really the opinion of the witness, and not his knowledge of facts, which was sought to be elicited.

3. Some of the questions involved in this case are substantially the same as those ruled upon in the case of Henderson v. The State, just decided, and for this reason need not be here again stated. Others relate to matters which will not probably arise on the next trial, and therefore do not call for discussion at this time; and the remaining questions raised by the motion for a new trial are of but minor importance. Judgment reversed.