Lashley v. State

• Decision Date: 11 September 1936
• Docket Number: 25668.
• Parties: LASHLEY v. STATE.
• Court: Georgia Court of Appeals

188 S.E. 43

54 Ga.App. 425

LASHLEY v. STATE.

No. 25668.

Court of Appeals of Georgia, First Division

September 11, 1936

Rehearing Denied Oct. 29, 1936.

Syllabus by Editorial Staff.

Court held not to have abused discretion in denying continuance requested upon ground of absence of two defense witnesses where one of witnesses had never been served with subp na and other, although served, was not a character witness and would not have testified, if present, to matters directly or indirectly connected with offense charged.

Affidavit in support of witness upon whose newly discovered evidence a new trial is sought must give names of his associates, a mere statement that he keeps good company being insufficient, and trial court's refusal to grant new trial on such ground does not constitute abuse of discretion where affidavit does not meet such requirement.

Error from Superior Court, Macon County; W. M. Harper, Judge.

Merwain Lashley was convicted of an assault with intent to rape, and he brings error.

Affirmed.

Gilbert C. Robinson, of Montezuma, for plaintiff in error.

Hollis Fort, Sol. Gen., of Americus, for the State.

Syllabus OPINION.

BROYLES Chief Judge.

1. The defendant was convicted of an assault with intent to rape. A ground of his motion for new trial shows that when the case was called on November 13, 1935, his counsel moved for a continuance upon the ground of the absence of two defense witnesses, "Miss Kathleen Smith, who was in Atlanta at the time but whose home was in Oglethorpe, Georgia [where the defendant was being tried], and Mr. Tom Green, a young man who lived just four miles from the court-house in Macon County, Georgia." The ground shows that on the hearing of the motion it was testified that subp nas had been issued on November 11, 1935, for both of the absent witnesses, but that only Green had been served; that the defendant "was not indicted until the present week, but had been under bond on State warrant for more than four months, that he did not employ counsel until Sunday before court met, in that he had heard the matter had been abandoned and that Mrs. Lemond [the prosecutrix] would not appear in court, she being at the time a resident of southern Florida."

Under the foregoing facts, it does not appear that the defendant exercised proper diligence to secure the presence in court of Miss Smith, the absent witness upon whom the subp na had not been served. As to...