Jones v. State

• Decision Date: 18 November 1918
• Docket Number: 783.
• Citation: 97 S.E. 621,148 Ga. 582
• Parties: JONES v. STATE.
• Court: Georgia Supreme Court

97 S.E. 621

148 Ga. 582

JONES v. STATE.

No. 783.

Supreme Court of Georgia

November 18, 1918

Syllabus by the Court.

Motions for continuance are addressed to the sound discretion of the court, and that discretion will not be controlled where not abused.

The court did not err in overruling the ground of the motion for a new trial based upon alleged misconduct of the jury in visiting the scene of the homicide.

There was no merit in the grounds of the motion based upon the alleged disqualification of a certain juror. Objections to a juror propter defectum must be made before verdict. Costly v. State, 19 Ga. 614; Gormley v Laramore, 40 Ga. 253; Hill v. State, 64 Ga 453.

Error from Superior Court, Mitchell County; W. M. Harrell, Judge.

Jimmie Jones was convicted of crime, his motion for new trial was overruled, and he brings error. Affirmed.

B. C Gardner and E. E. Cox, both of Camilla, and J. J. Hill, of Pelham, for plaintiff in error.

R. C Bell, Sol. Gen., of Cairo, F. A. Hooper, of Atlanta, Clifford Walker, Atty. Gen., M. C. Bennet, of Atlanta, and Johnson & Warren and Ben T. Burson, all of Camilla, for the State.

BECK P.J. (after stating the facts as above).

1. The overruling of the motion for a continuance was not error. These motions, as has been so frequently ruled, are addressed to the sound discretion of the court. Park's Code, § 5724. While in the present case it may appear from the written evidence in the record that the ends of justice would have been better subserved by granting a continuance, the trial judge who passed upon the issue made by the motion and the counter showing had all the evidence before him, heard witnesses testify orally, and was authorized to reach the conclusion that the ends of justice did not require a continuance. The witness Vano, whose absence was the ground of the motion, was under indictment in the county, and could not be found when the officers who were sent out to bring him as a witness searched for him. He had been in the chain gang for some offense, and the judge might well have held that it was not probable that his presence at the trial of the case could be secured. But, as the statute referred to provides, these things were addressed to the sound discretion of the trial court.

2. Another ground of the motion for a new trial was based upon alleged misconduct of the jury after all of the evidence in the case had been submitted and argument by one of the counsel for the state and one for defendant had been made. The misconduct consisted in a visit to the scene of the homicide and discussion of certain physical facts testified to by a witness for the state at the trial, which tended to illustrate the question of the defendant's guilt. The two bailiffs in charge of the jury, Joiner and Campbell, each made an affidavit in substance, that on Saturday afternoon after the court had adjourned until the following Monday morning, the jury were out for the purpose of taking some exercise, and they went in a body in the charge of the two bailiffs to the house at which a witness for the state had testified the killing took place; that one of the jury suggested that they go to the house; that some of the jurors walked around in front of the house and around the porch, and saw a buggy track in front of the house, and a discussion took place among the jurors as to whether or not that was the track made by the buggy which the state claimed was standing in front of the house while the horse was tied to the corner of the porch, and a discussion was had as to where the horse was and where it stood at the time the defendant was alleged to have fired the shot which took the life of the deceased; that some of the jurors said, "If the defendant was standing here [pointing to a spot] when he fired the...