Gallimore v. State, 66099

• Decision Date: 12 May 1983
• Docket Number: No. 66099,66099
• Citation: 166 Ga.App. 601,305 S.E.2d 164
• Parties: GALLIMORE v. The STATE.
• Court: Georgia Court of Appeals

Page 164

305 S.E.2d 164

166 Ga.App. 601

GALLIMORE v. The STATE.

No. 66099.

Court of Appeals of Georgia.

May 12, 1983.

R. Robider Markwalter, Macon, for appellant.

Willis B. Sparks, III, Dist. Atty., George F. Peterman, III, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

The defendant appeals his conviction for violation of the Georgia Controlled Substance Act. Held:

1. The defendant moved for a continuance based on the absence of an out of state witness and enumerates as error the denial of such motion.

OCGA § 17-8-25 (former Code Ann. § 81-1410) contains eight statutory requirements which must accompany an application for a continuance. Oliver v. State, 146 Ga.App. 798(1), 247 S.E.2d 487. "It was pointed out in Hobbs v. State, 8 Ga.App. 53, 54, 68 S.E. 515 that continuances in criminal cases are not governed by the strict rules of civil cases and that the motion should be granted 'whenever the principles of justice appear to demand a postponement.' Nevertheless, in civil and criminal cases alike, there is some discretion upon the part of the trial court, and this court is limited to the decision merely of whether the decision as made constitutes an abuse of discretion." Scoggins v. State, 98 Ga.App. 360, 362, 106 S.E.2d 39. Accord, Keller v. State, 128 Ga.App. 129, 130, 195 S.E.2d 767.

"A motion to continue is addressed to the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion. Corbin v. State, 212 Ga. 231(1), 91 S.E.2d 764 (1956). Where the moving party fails to make a proper showing of the requirements set forth in Code Ann. § 81-1410, the denial of a continuance motion cannot be said to be an abuse of discretion." Harris v. State, 142 Ga.App. 37, 39, 234 S.E.2d 798.

We also note that the out of state witness was to give testimony establishing an alibi for the defendant. Another defense witness covered substantially the same ground on the trial. The failure to grant a continuance for testimony which is merely cumulative is not reversible error. Johnson v. State, 72 Ga.App. 534(1), 34 S.E.2d 555; Hill v. State, 91 Ga. 153(1), 16 S.E. 976; Jones v. State, 125 Ga. 307, 308, 54 S.E. 122.

2. The evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

Judgment affirmed.

SOGNIER and POPE, JJ., concur.