Morris v. State , 66 Ga. App. 37 ( 1941 )

1. "A [defendant] is not entitled to a continuance on the ground of surprise, who neglects to procure witnesses whom he knows to have been present at the time the act was committed for which he was indicted." King v. State, 21 Ga. 220 (8). Moreover, regardless of the degree of merit in a motion for continuance based on the ground of absence of a witness, the motion must come substantially within the requirements of the Code, § 81-1410, in order to bring under review the question whether the judge abused his discretion in denying the motion.

2. The court did not err in overruling the certiorari.

DECIDED SEPTEMBER 11, 1941. REHEARING DENIED OCTOBER 14, 1941. In this case the only assignment of error is on the order overruling the certiorari which complained that the judge abused his discretion in denying the motion of the defendant for a continuance based on the ground of the absence of two material witnesses. It appears that since the pendency of the charges against him the defendant had had several months in which to subpoena the witnesses and insure their attendance at his trial, and that during that time he had made no effort to that end. It does not suffice to extenuate his lack of diligence that he did not know just what the State's witnesses would testify until it was too late to summon the witness, one of whom was without the jurisdiction of the court and the other was not known to be then accessible. In this connection see King v. State, supra. See also Code, § 81-1410, relatively to the necessity resting on the defendant to bring his motion substantially within its provisions, which the defendant in several particulars failed to do.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.