Copenhaven v. The State Of Ga.

• Citation: 14 Ga. 22
• Decision Date: 31 August 1853
• Docket Number: No. 5.,5.
• Parties: Gideon Copenhaven, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Supreme Court of Georgia

14 Ga. 22

Gideon Copenhaven, plaintiff in error. vs. The State of Georgia, defendant.

No. 5.

Supreme Court of the State of Georgia

AUGUST TERM, 1853.

Indictment for Burglary in Monroe Superior Court. Tried before Judge Starke, March Term, 1853.

The defendant in this case being arraigned, and having plead not guilty, moved a continuance on the same grounds as those taken in the case of Roberts vs. The State (No. 4 suprie with the additional ground that he had absent witnesses residing in Murray county, by whom he could prove an alibi. The motion to continue was overruled, when defendant moved to postpone the ease to Monday of the second week of the term, that he might send for the witnesses in Murray county. This also the Court refused, and the trial proceeded.

The first juror being put on, the prisoner having answered negatively the questions prescribed by the Penal Code, triers were demanded by the prisoner, who being called upon to name a trier, nominated Robert S. Lanier, upon which the Court named W. K. DeGraffenried, both of whom resided out of thecounty of Monroe. The first juror being pronounced competent, was sworn in chief, and the next was called, and also put upon triers, and the Court called on prisoner\'s counsel to select one, which they declined to do; on which the Court discharged Mr. Lanier, and sent out Mr. DeGraffenreid with the first juror, to try the second, whom they declared competent, and who was sworn in chief, and the two jurors tried the next one called, &c.

When the jury were all chosen and sworn, prisoner's counsel objected to the panel, on the ground that the triers who were first selected os above stated, resided out of the county. The objection was overruled, and the prisoner was tried and convicted:

Whereupon, defendant excepts, and assigns error as follows: That the Court erred 1st. In refusing to grant the continuance.

2nd. In refusing to postpone the case to another day of the same term.

3d. In holding that the jury had been properly and legally tried; or if not, that the objection came too late.

Lamar, Hammond and Lochrane, for plaintiff in error.

Glenn (representing Thrasher, Sol. Gen.), for defendant.

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

The record in this ease, shows that the defendant was put upon his trial the day after the indictment was found. He moved to continue the cause, on several grounds; and among the rest, he swore that he expected to prove by Thomas Whit-ten, at the next term of the Court, that he was on his way to Georgia with horses and lodged all night at the-house of Whit-ten, in the county of Murray, in this State, on the night of the 14th of October, 1852; the alleged robbery having been committed in Monroe county, on the night of the 12th of the same month (some two hundred miles distant): and he further swore, that he expected to prove at the next term, by one Frederic Short, of the said county of Murray, that he (the accused) couldnot have been at the place where the offence was committed, as the witness Short saw defendant at Whitten\'s house in Murray county the second night thereafter; and that the showing was not made for delay, but for the purpose of getting a fair trial.

The motion for a continuance for the term having been overruled, the prisoner's counsel made application to the Court to suffer the trial to be postponed till the Monday of the next week, to enable him to procure the attendance of Whitten and Short, which was refused, and the party was ruled to trial.

From the facts stated in the bill of exceptions, was not the defendant entitled to a continuance or postponement of the trial?

The 17th section of the 14th division of the Penal Code provides that "Every person against whom a bill of indictment is found, shall be tried at the term of the Court the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice should require a postponement of the trial; and then the Court shall allow a postponement of the trial until the next term of the Court; and the Court shall have power to allow the continuance of criminal causes from term to term as often as the principles of justice may require, upon sufficient cause shown on oath." (Cobb's New Digest, 835, 836.)

Ours is a liberal code upon the subject of continuances in criminal cases. Under it an improper refusal of a continuance is matter of error. But with the latitude of discretion in allowing continuances from term to term as often as the principles of justice may require, the exercise of discretion in favor of criminals must be very arbitrary or very erroneous, to make the granting of continuances cause for reversal. Fortunately for prisoners at least, under our organization, this question can never perhaps be tested.

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