Nick v. State , 1907 Ga. LEXIS 169 ( 1907 )

Cobb, P. J.

(After stating the facts.)

1. Motions for continuance are addressed to the sound .legal discretion of the court. This is the rule in all cases, including those where the accused is charged with a capital felony. The constitution guarantees to every one charged with a crime the privilege and benefit of counsel. The constitutional guaranty amounts to nothing, unless the counsel selected by the accused or appointed by the court are given a reasonable time to ascertain what is the character of the case that the accused is called upon to defend. There is no rule fixing what is a reasonable time for such preparation. What is a reasonable time depends upon the general character of the ease and the questions of law and fact involved therein. In the present ease it appears from the showing; made for a continuance that the only question involved was, who-■fired the fatal shot? That there was a homicide, and that this homicide was murder, seems not to have been an open question.. The accused was present at the scene of the killing. It is true that there were a large number present. It does not appear that the accused was among strangers. It is manifest, from the terms of the showing, that he knew a number of these present, if not all of them. Tie furnished to his counsel the names of a number of those who were present, and subpoenas were issued for them, but, notwithstanding this, there does not appear in the showing for a continuance the name of a single witness whose presence at the trial was desired. The showing upon which it is based is very loose and irregular, being, in substance, that there were a number of persons present, and that counsel were not in a position to do the accused justice until they could have an- opportunity to find out who of those present were witnesses to the homicide. In one portion of the showing it is stated that there was a witness living in another county who would testify that the accused did not fire the fatal shot; but the name of this witness was not disclosed to the court. If it had been, the court would probably have exercised its discretion and postponed the trial until a later date in the term, in order to have this witness brought into court. While it appears from the showing that counsel were not in a position to-know who were the witnesses by whom the accused could establish that the homicide was committed by another, there is nothing in the showing to indicate why it was that the accused himself could not have given to counsel the names of those persons who actually witnessed the homicide. When the showing is considered in its-entirety, there was no abuse of discretion shown. See, in this connection, Hardy v. State, 117 Ga. 40; Thompson v. State, 24 Ga. 297; Bradley v. State, 128 Ga. 20. That portion of the showing which complains that other counsel who had been appointed to assist in the defense of the accused were excused, and no others had been appointed to take their place, is not referred to in the brief of counsel; and this point will be treated as abandoned.

2. The motion for a new trial contains no other special grounds than the ones dealt wiih in the preceding portion of this opinion. The evidence amply authorized the verdict, and we see no reason for reversing the judgment.

Judgment affirmed.

All the Justices concur.