Howell v. State , 5 Ga. App. 186 ( 1908 )

Powell, J.

1. An affidavit charging the defendant with the “offense of assault with a knife [upon -a named person] to murder” may legally furnish the basis for an accusation in a city court, charging the defendant with the offense of stabbing.

2. The defendant was arrested and brought before a magistrate on a warrant for assault with intent to murder. On June 8 the magistrate, on that charge, committed him in default 'of bail for his appearance at the next term of the superior court, to be held on the second Monday in October. On August 18 the solicitor-general of the circuit, who by law was also solicitor of the city court, filed in the city court an accusation, based upon the same affidavit upon which the warrant was issued, charging the defendant with stabbing. The defendant was in jail, and neither he nor his counsel knew of the accusation until August 20th or 21st. On August 22, when the case was called in the city court, the defendant moved' for a continuance, on the ground that he had a material witness who was then in another county, about fifty miles away, whom he had not subpoenaed, because he did not expect the case to be tried until the superior court convened; and the court overruled the motion. Held, that the defendant was entitled to a continuance. Judgment reversed. .