Anderson v. State

• Decision Date: 08 January 1884
• Citation: 72 Ga. 98
• Parties: ANDERSON v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

72 Ga. 98

ANDERSON v. THE STATE OF GEORGIA.

Supreme Court of Georgia.

January 8, 1884

September Term, 1883.

1. The showing in support of a motion for continuance, on the ground of the absence of witnesses, should be full, satisfactory and direct, as to the material allegations necessary for that purpose; it should appear that there is no other witness present by whom the defendant can satisfactorily prove the same facts, and that such facts would be evidence in the case.

( a. ) Continuances of a criminal case, after the first term, rest in the sound discretion of the court; and even at the first term, all discretion is not denied to the judge.

2. The bill of exceptions should specify plainly the decision complained of. An assignment of error that the entire charge is erroneous, is too general, if any part of it be correct.

( a. ) While confessions of guilt should be received with great caution, and will not, alone, justify a conviction, yet if they should be corroborated by circumstances, they would be sufficient for that purpose.

( b. ) The charge on the subject of circumstantial evidence and confessions was full, clear and proper.

3. Where the preliminary examination as to the admissibility of confessions was conducted in the presence of the jury, and being found competent, they were admitted, this was not such error as would require a new trial; aliter, had the confessions been inadmissible.

Criminal Law. Continuance. Murder. Practice in Superior Court. Before Judge ADAMS. McIntosh Superior Court. May Term, 1883.

To the report contained in the decision, it is only necessary to add, in connection with the third division thereof, that one ground of the motion for new trial was because the court did not cause the jury to retire during the preliminary examination as to the admissibility of the confession. After examining the witness, McGriff, the confessions were held admissible, and were proved, as stated in the decision.

GARRARD MELDRIM & FRASER, for plaintiff in error.

C ANDERSON, attorney general; W. G. CHARLTON, solicitor general, by HARRISON & PEEPLES, for the state.

HALL Justice.

The prisoner and his brother, Pompey Anderson, were indicted jointly for the murder of Chance Brown. When the case was called, the defendants severed, and the prisoner was put upon his trial. He moved for a continuance, and put his showing in writing, to the effect that Barbara Anderson, and other witnesses subpœ naed for them, were absent without his consent, etc., on account of sickness; that he expected to prove by them that Pompey Anderson was absent from the scene of the homicide at the time it was committed, and could not have participated therein. This showing for a continuance was overruled, and the trial proceeded. The defendant was convicted, and made a motion for a new trial upon various grounds, which was overruled by the court. In this motion was included the judgment overruling the continuance. The evidence upon which the defendant was convicted consisted principally of his own confessions, made to one McGriff, who was confined in McIntosh jail at the time defendant was committed, and who thereafter occupied with him the same cell in the prison. Defendant stated to McGriff that he " would not be there, if it were not for his brother; that Chance had detected Pompey killing his hog, and that Pompey had come to him (Robert) and advised him of the fact, saying they must put an end to Chance; that he (Robert) had then, at Pompey's instance, gone to Chance's house, and asked him if it was true he had said Pompey had stolen his hog. Chance said he had. That he then asked him if he would show him the place where he caught Pompey, and Chance assenting they thereupon walked to the spot together, Pompey, by arrangement, being stationed there with his gun; that on reaching the spot, he (Robert) struck Chance on the forehead with his stick, and Pompey shot him in the head from behind that they then concluded, from the fact that Patsy had seen Chance and Robert go off together, that they were in a bad fix, and to secure themselves, it was necessary to kill the woman, whereupon it was agreed that Pompey, having killed Chance, Robert should kill Patsy, his wife. In pursuance of this arrangement, they proceeded to Chance's house, and Robert, inserting the gun through a crack, shot her as she sat by the fire.

1. There was no error in disallowing the motion for a continuance, or in refusing a new trial upon that ground. The presiding judge seems to have thought that sufficient diligence had not been shown in procuring the attendance of these absent witnesses, for, in certifying this ground of the motion, he states that the case was sounded some days previous to the trial, with the object, which he then announced, of ascertaining whether everything was in readiness, and, if parties so desired, of having witnesses sent for, that the defendant and his counsel, although present, gave the court no intimation of the absent witnesses, but permitted the case to be marked ready, the court acting under the idea that the defendant was prepared for trial. Whether the court was right or wrong in supposing that there was a want of diligence in procuring the attendance of these witnesses, yet we are well satisfied that the case should not have been postponed because of their absence.

The absence of Pompey Anderson from the scene of this double murder, at the time it was committed, did not account for the prisoner's whereabouts, and did not negative the fact that he made to McGriff the full and circumstantial confession deposed to by him, and, if admissible at all, could have had only a remote bearing upon that issue. The showing did not set forth that the defendant had no other witnesses by whom he could prove the same facts, nor could this requirement of the law have been complied with, as the prisoner, on his trial, introduced at least three other witnesses who testified to substantially the same facts. In Allen vs. The State, 10 Ga. 85, this court held, that the affidavit for a continuance should be full, satisfactory and direct as to the material allegations necessary for that purpose, and should state that there is no other witness present by whom the party can satisfactorily prove the same facts. It should appear, further, that the facts expected to be proved would be evidence in the case.

This indictment was found at the May term, 1881; the trial did not take place until the May term, 1883, of the court. By the Code, §4647, every indictment stands for trial at the term of the court at which it is found, unless the absence of material witnesses or the principles of justice should require a postponement of the trial; then the court is required to allow such postponement to the next term. Subsequent continuances would seem to rest in the sound discretion of the court. Griffin vs. The State, 26 Ga. 498, 500.

The court, in the first case, is required to grant the continuance for the specified cause; in the last case however, it has " power" to do so. But, although required to grant the continuance for...