Ivey v. State
| Decision Date | 17 August 1922 |
| Docket Number | 3184. |
| Citation | 113 S.E. 175,154 Ga. 63 |
| Parties | IVEY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
What time shall be allowed a defendant and his counsel to prepare for trial is a matter resting in the sound discretion of the trial judge, with which this court will not interfere, unless abused.
As no unusual or intricate matters of law or fact appear to have been involved in this case, we cannot say that the trial judge abused his discretion in overruling the motion for a postponement or continuance upon the ground of want of time to prepare for trial.
The motion to postpone or continue, in order to obtain the presence of two witnesses, was properly refused, where the testimony of one of said witnesses was hearsay, and the testimony of the other was wanted to impeach a witness who was not sworn in the case.
In an application to postpone or continue a case for the purpose of giving the defendant and his counsel time to prepare for trial, it must be shown that the application is not made for the purpose of delay.
Grounds for new trial, based upon newly discovered evidence, are tolerated, but not favored, by the courts.
An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter showing, and where such affidavit does not comply with this requirement the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.
In a counter showing the state showed that this witness had been convicted of larceny, thus discrediting him and casting doubt upon the credibility of his testimony; and for this reason the trial judge did not abuse his discretion in refusing to grant a new trial on this ground.
The verdict was amply sustained by the evidence.
Additional Syllabus by Editorial Staff.
Larceny is a crimen falsi, and the record of a conviction for larceny is admissible to discredit a witness.
Error from Superior Court, Pierce County; H. B. Strange, Judge.
Watson Ivey was convicted of murder, and he brings error. Affirmed.
James R. Thomas, of Jesup, for plaintiff in error.
A. B Spence, Sol. Gen., of Waycross, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.
The defendant was indicted for the murder of Lonnie Boyett. The homicide occurred on December 25, 1921. The indictment was returned on January 3, 1922. The case was called for trial on January 5, 1922. The defendant moved to continue or postpone his case, on the ground that he had been in jail since the homicide; that he was unable to employ counsel to represent him; that his wife employed counsel to represent him on the preceding Monday night; that he had had no chance to prepare his case for trial; that he was not ready for trial, because he had some witnesses who were not present; that he had not had a chance to have them subp naed; that these witnesses were Henry Carter and W. R. Davis; that the former lived in Wayne county; that he had had "no privilege nor chance" to find out anything about any witnesses he might want until the day before; that for that reason he had not had time to prepare his case, and was not ready for trial; that he expected to prove by Henry Carter that Lake Stewart told this witness all about seeing the knife; and that he expected to impeach Nathan Lyles by proof by W. R. Davis of the general bad character of said Lyles.
Hon. James R. Thomas stated in his place that he was the sole and only counsel of the defendant; that he was employed by the wife of the defendant to represent him, on the preceding Monday afternoon, about dark; that since then every minute of his time, except when going to his meals or when he was getting a little sleep, he had been engaged in the trial of one Roy Carter for murder, until 8:30 p. m. on the preceding night, when a verdict in that case was returned; that he had had no reasonable opportunity up to that time to properly prepare the defendant's case for trial; that, the case being an important one to the defendant, he was entitled to some time in which to prepare this case and to get it ready for trial, and for this reason he asked that the case be postponed and a reasonable opportunity be given the defendant and his attorney to get the case ready for trial; that this killing occurred on December 25th; that since that time the defendant had been in jail; that the indictment was returned into court on the same day that he was employed to represent the defendant, and for that reason sufficient reasonable time had not been given the defendant to prepare his case and get it ready for trial.
On the day before the trial began the court gave counsel for the defendant two hours, from 2 p. m., to consult with his client. The court overruled this motion to continue or postpone this case; and the first question for our determination is: Was this ruling erroneous?
1. What time shall be allowed counsel for defendant to prepare for trial is a matter resting in the sound discretion of the trial judge, with which this court will not interfere, unless abused. No unusual or intricate matters of law or fact appear to have been involved in this case, and, nothing being shown as to public excitement, we cannot say that the trial judge abused his discretion in overruling the motion for a continuance upon the ground of want of time to prepare for trial. Charlon v. State, 106 Ga. 400 (2), 32 S.E. 347; Kelloy v. State, 151 Ga. 551, 107 S.E. 488; Harris v. State, 152 Ga. 193, 108 S.E. 777.
The defendant asked for a postponement or continuance in order to obtain the presence of two witnesses, Henry Carter and W. R Davis. What he wished to prove by Henry Carter was hearsay, and for this reason was not admissible. He wished to have the other witness, W. R. Davis, present for the purpose of impeaching Nathan Lyles. As this latter witness was not sworn as a witness in behalf of the state, there was no need of having the impeaching witness present. Furthermore, it was not shown that the motion to postpone or continue was not made for the purpose of delay, and for lack of this essential element of a good showing for postponement or continuance (Penal Code, § 987; Jones v. State, 127 Ga. 281, 56 S.E. 453), the court did not err in refusing to...
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