McAllister v. State
| Decision Date | 22 September 1915 |
| Docket Number | 6186. |
| Citation | 86 S.E. 412,17 Ga.App. 159 |
| Parties | MCALLISTER v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A motion for a continuance was made on account of the absence of a witness subp naed on the day of the trial, who had "been sick a pretty good while," had been "in the hospital," and "in bed two weeks since he was brought back to his house," and who was expected to testify that certain whisky was not the property of the accused, thereafter convicted of the offense of keeping intoxicating liquors on hand at his place of business. Held, that in view of all the circumstances, and of the great uncertainty that the absent witness would ever be able to attend the court and testify, taking into consideration the testimony of the physician attending him that he was suffering from a serious malady and that his condition was "acute," that he was unable to attend court that week, the week following, or the week after that and it was altogether uncertain when, if ever, he could attend court as a witness in the future, as he had only a chance of recovery, and the probability was that he could not attend at the next term of the court, we cannot say, as a matter of law, that the trial judge abused his discretion in overruling the motion for a continuance.
The arresting officer represented that he had an "order" from the judge of the superior court of the circuit in which the defendant lived and the crime was alleged to have been committed, requiring the defendant to deliver to the officer a certain iron safe, then in his place of business, when in fact the officer had no written authority authorizing him to seize the safe or to demand its delivery to him by the defendant. The defendant thereupon consented that the officer should remove the safe from his custody, and it was then removed, and was thereafter forcibly broken open by the officer, and found to contain whisky which was later introduced in evidence against the defendant as proof that he had kept whisky in his place of business. Held, the evidence, though obtained by unlawful search and seizure, was not inadmissible under the limitations fixed by article 1, section 1, paragraphs 6 and 16, of the Constitution of Georgia (Civil Code 1910, §§ 6362, 6372). See Duren v. Thomasville, 125 Ga. 1, 53 S.E 814; Williams v. State, 100 Ga. 511, 28 S.E. 624, 39 L.R.A. 269; Dozier v. State, 107 Ga. 708, 33 S.E 418. See also State v. Turner, 82 Kan. 787, 109 P 654, 32 L.R.A. (N. S.) 772, 136 Am.St.Rep. 129, and notes citing numerous cases, pages 135 to 163, inclusive. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, is...
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