Hickox v. State , 26 Ga. App. 416 ( 1921 )

Bloodworth, J.

1. Motions to continue are addressed to the sound legal discretion of the court. Renal Code (1910), § 992. When all the facts shown on the motion to continue this ease are considered, especially in connection with the qualifying note of the judge to this ground of the motion, we cannot say that the judge abused his discretion in overruling the motion to continue.

2. The court did not err in refusing to charge the jury as requested by the defendant, nor in failing to charge as complained of in the amendment to the motion for a new trial, as neither the evidence nor the statement of the defendant would support a charge that the defendant took the hog under a fair claim of right. The indictment charges that the hog was stolen on December 16, 1917, and the evidence for the State, which the jury believed, supports this allegation and shows that this was Sunday. In his statement the defendant expressly affirmed that he was “ innocent of butchering i any hog on Sunday,” and, as to the larceny on Sunday, his sole defense was alibi.

(а) The court is not bound to give a charge requested which, though abstractly correct, is not fairly adjusted to the case on trial. Smalls v. State, 99 Ga. 26(3) (25 S. E. 614).

(б) The court should not give a requested charge unless there be evidence to support it. Nutzel v. State, 60 Ga. 265(3).

(c) The accused “ can not' complain that the court failed to submit to the jury a theory which was negatived not only by his own statement, but by the evidence which he introduced and asked the jury to accept as the real truth of the case.” McDaniel v. State, 100 Ga. 68(2) (27 S. E. 158).

3. The jury, on conflicting evidence, found the defendant guilty; the verdict was approved by the trial judge;, no error of law committed, and this court can not interfere.

Judgment affirmed.

Broyles, G. J., (mid Luke, J., concur.

The trial judge, in his certificate approving the grounds of the motion for a new trial, said: “After the within motion for a continuance was completed, the court continued the cgse until the next day. I told the attorney for the defendant, in defendant's presence, that if he wanted the absent witness for the defendant, he had better get an attachment for him. There was no attachment requested or issued for said absent witness, and the case was called the next day for trial and tried. Counsel for the defendant, on the day said case was tried, stated he was not ready for trial, but he did not renew his motion for a continuance.''

James B. Thomas, Parlcer & Parlcer, A. G. Franks, for plaintiff in error. A. B. Spence, solicitor-general, contra.