Brady v. State , 120 Ga. 181 ( 1904 )

Lamar, J.

There had already been one continuance because of the absence of the witness Fletcher. He had been subpoenaed prior to the August term, 1903, and this was sufficient to require his attendance from term to term. When, therefore, he failed to appear on the call of the case at the January term, 1904, he was prima facie in contempt, and subject to attachment. Civil Code, §§ 5260, 5263. Continuances are only allowed to the diligent (Civil Code, § 5263), and to those who avail themselves of the means provided by law for compelling the attendance of those by whom facts material to the cause are to be proved.' When, therefore, the court of its own motion offered to issue an attachment and the defendant declined to accept the same, he was lacking in legal diligence. With knowledge that the witness had disobeyed one subpoena, he chose to rely on another,- which was no better than that already served. There was no abuse of discretion in refusing the continuance and ordering the case to trial. McRae v. State, 52 Ga. 290; Anderson v. State, 72 Ga. 98; Runnals v. Aycock, 78 Ga. 554 (3 a).

The testimony for the State showed that' the defendant was caught in the very act of' stealing the seed-cotton from the gin-house of the prosecutor; the evidence was ample to sustain the verdict; and the judgment refusing the new trial must be

Affirmed.

All the Justices concur.