Allen v. The State Of Ga.

• Decision Date: 31 July 1851
• Docket Number: No. 9.,9.
• Citation: 10 Ga. 85
• Parties: Wiley F. Allen, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

10 Ga. 85

Wiley F. Allen, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 9.

Supreme Court of the State of Georgia

JULY TERM, 1851.

Indictment for simple larceny, in Stewart Superior Court. Tried before Judge Iverson, May Term, 1851.

When this cause was called for trial, the plaintiff in error moved for a continuance, on the following grounds:

1st. That he had employed as his attorney for his defence in said cause, Charles J. McDonald, Esq. and that his said counsel was absent, without his leave or consent.

2d. That said bill of indictment had been found true at that term of the Court, and that he had not had time to subpœna witnesses.

3d. That Hardy Bryan was a material witness for him, and that said Bryan lived in the County of Thomas, by whom he expected to explain the possession of the negro boy, Abram, and that he held said boy as the agent of one Manifee.

The Court refused to grant the motion on either ground, unless plaintiff in error would state in his showing, that said McDonald was absent by providential cause; or would add to the third ground, that he expected to prove his agency by Bryan, otherwise than by his own representations to Bryan.

This decision of the Court, refusing the continuance, is assigned as error.

B. K. Harrison, for plaintiff in error.

Sol. Gen. Williams, by James Warren, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

Did the Judge err, in overruling the application for a continuance in this case?

In determining this question, it may be urged on the one side, that if persons are permitted to postpone their trials on slight grounds, that but few criminals will be brought to justice. To say nothing of other casualties and chances, the jails in many of the Counties are so insecure that with the assistance of confederates from without, many effect their escape, and thus elude the criminal justice of the country. Besides, as the Courts are held only twice in the year, the expense, from delay, becomes a grievous burthen to the Counties.

On the other hand, the rights of humanity require, that every citizen, whom the law presumes innocent till found guilty, should have a fair and impartial trial, and every reasonable indulgence allowed him to procure his witnesses. That there is no crime so great—no proceeding so urgent, but that the Court would, upon proper grounds, grant this motion.

With these general observations, let us proceed to examine the affidavit upon which the continuance was claimed.

The prisoner states, that he has employed in his defence, Charles J. McDonald, Esq. and that said counsel is absent without his leave or consent; that the bill of indictment wasfound at the term of the Court when he was put upon his trial, and that he has not had time to subpoena witnesses; that Hardy Bryan is a material witness for him, living in the County of Thomas, by whom he expects to explain the nature of the possession of the boy Abram; and that he held him as the agent of one Manifee.

Is the mere absence of an attorney who has been employed to prosecute or defend a cause, a sufficient ground for a continuance?

I would remark that the authorities all show that the absence of counsel is not a favored excuse for not proceeding to trial.

In Post vs. Wright & Buchan, (1 Caines' R. 111,) the absence of counsel was urged as an excuse, but the Court refused to admit it. Hoffman pressed strongly the rigor of the practice, and said that it was the first instance where such strictness had been enforced. The Court answered, there must be a first time in all proceedings.

In Sayer vs. Finck, (2 Caines' R. 336,) the same excuse was reluctantly admitted, though the plaintiff's counsel was absent, from an opinion that the cause would not come on, induced by expressions from the partner of the attorney on record, for the plaintiff.

In McKay vs. The Marine Insurance Comyany, (Ibid, 384,) the Court refused a continuance on account of the absence of counsel, declaring that all excuses of that sort ought to be discountenanced.

From these precedents, this rule, it would seem, may be deduced; that it is the duty of counsel to attend, and that the failure to do so, is no cause for a continuance, unless in cases of necessity or misconception.

In Hammond's lessee vs. Haws, (Wallace's R. 1,) the Court held that to obtain the continuance of a cause, the party should show some legal ground, and that it is not sufficient to allege that the attorney in fact or law, from attention to other necessary concerns, could not be present. Judge Griffith remarked, " that if such representations were admitted to prevail, they might always be urged." And Judge Basset said, " I am always desirous to give indulgence, where it may advance justice and work no considerable injury, or infringe any established rule of law. But one party must not be wronged by the extension of accommodations to the other. The only question is, whether the plaintiff has used clue diligence to bring this cause to trial, and has been prevented by obstructions which furnish a reasonable ground for a continuance. I do not think he has; I am, therefore, against it." And Tilghman, Ch. Judge, said, " The showing made, is insufficient to authorize us to continue the cause. No legal reason is assigned to justify the want of preparation for trial."

In The lessee of Shultz vs. More, (1 McLean's B. 334,) it was held, that where the leading counsel in a case is prevented from attending the Court by sickness, and the counsel in attendance is not prepared to go on with the trial, it is good cause for a continuance. The motion was based upon the affidavit of the counsel himself, which stated that he was sick and unable to attend the Court—that the affiant was the first counsel engaged by the defendant—had appeared as his attorney in the same case in the State Court, and was intimately acquainted with the grounds of defence—that he had possession of the papers, and that he did not believe justice could be done in the cause, under present circumstances, in his absence.

I have stated the contents of the affidavit, to show how strict the Courts have been in granting continuances for this cause.

In the case between the States of Rhode Island and Massachusetts, (11 Peters, 226,) the senior counsel appointed by the Legislature to argue the cause for the State of Rhode Island, was prevented by unexpected and severe illness, attending the Court, and the Supreme Court, on the application of the Attorney General of the State, ordered a continuance for the term, though not without strenuous opposition from Mr. Austin, the Attorney General of the State of Massachusetts; and the motion was argued on the peculiar character of the cause, it being a controversy between two of the sovereign States of the Confederacy, upon the decision ofwhich, the peace and tranquility of the whole Union might depend, rather than upon the strict rules which govern ordinary cases.

In this Court, and in the Courts of this State, so far as we know, the illness of counsel, if there be but one, or of the leading attorney, if there be more than one, has always been held a sufficient ground for the continuance of the cause, especially where the sickness was so sudden or recent as to deprive the party of the opportunity of...