Cook v. State , 27 Ga. App. 253 ( 1921 )

Bloodworth, J.

1. Under all the facts and circumstances of this case, this court can not say that the trial judge abused his discretion in overruling the original motion to continue the case.

2. The original motion to continue this case was made in the morning. Late in the afternoon of the same day, when the case was again called, the defendant offered to renew his motion for a continuance, and his counsel stated that the defendant would testify that he (the defendant), " on account of his weakened condition for the past six weeks, about two or three weeks of which was spent in the bed, and being brought to town that day and sitting there' all day, was at the time physically unable to defend his case.” This was practically the same motion as made in the morning. In reference to this offer to renew the motion to continue the trial judge, in a note attached to.the motion for a new trial, said: "The defendant was in court when the second motion to continue was made, a,nd showed no change of condition. He stood his trial and conducted the same, and, after verdict of guilty, made a motion for new trial and was released on bond, and was by the presiding judge seen in the crowds about the streets, moving about on his crutches and talking with people on the streets as others were doing.” In the light of this note, we do not think that the judge erred in refusing to allow the defendant to renew his motion for continuance.

3. Every essential element of the crime charged is shown by the evidence for the State. To set aside the verdict it would be necessary for this court to say that this evidence is false. To pass upon conflicting evidence is the peculiar province of the jury. No error of law is shown; the jury believed the evidence for the State; their verdict has the approval of the trial judge, and must be sustained.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents'.