Poppell v. State
| Decision Date | 21 December 1883 |
| Citation | 71 Ga. 276 |
| Parties | POPPELL v. THE STATE OF GEORGIA. |
| Court | Georgia Supreme Court |
September Term, 1883.
1. In every criminal case, the defendant has the right to make his statement, and the jury may give it whatever weight they think it entitled to. They may believe it in preference to the sworn testimony, or may disbelieve it. To charge this principle was not error; nor was it error to remind the jury that the statement was not made under oath, and that the defendant incurred no penalty for not speaking the truth.
2. Continuances on account of the absence of counsel are not favored, and a strict showing is required; particularly where other competent counsel have been secured, and no injury is shown.
3. A new trial will not be granted on account of newly discovered testimony which is merely cumulative, and where no diligence was used to procure it before the trial.
Criminal Law. Charge of Court. Continuance. Before Judge ADAMS. Liberty Superior Court. May Term, 1883.
Poppell was indicted for assault and battery. When his case was called, neither of his two counsel were present, and defendant employed a third, who moved for a continuance or postponement until the next day, because of his recent employment and want of preparation, and because the defendant relied on his original counsel being present. This motion was overruled.
The evidence showed that Walter Baxter, who was a school-boy went to the well to get some water, and unintentionally spat upon the defendant; that as soon as he did so, he said " Oh! oh! I did not go to do that; " but defendant started at him, and he ran; that defendant ran after him threw him down and beat with his fist so that a silver quarter could not be laid on his face without touching a bruise; that young Baxter had been whipped in school a few days before because one of the boys had reported that he had spat in the face of the defendant's little sister, but he denied having done this in his testimony.
There was some evidence for the defendant to contradict statements of a witness for the state, as to the testimony given in at the committing trial; and one witness for the defendant testified that he saw young Baxter about a week and a half after the alleged battery, and did not notice any bruises on him, but did not notice him particularly.
Defendant in his statement, said that he was standing at the well when Baxter came up as if to get water; that he turned round and spat on defendant's breast so that it spattered in his face; that he then ran; that defendant did not hear any apology or disclaimer; that he ran after Baxter, and just before catching him, the latter fell and struck his face on some snags, causing the bruises; that defendant merely spanked him; and that Baxter had spat in the face of defendant's little sister a few days before.
The jury found the defendant guilty. He moved for a new trial, on the following among other grounds:
(1.) Because the court charged as follows: [The objection was that this tended to cast discredit upon the statement.]
(2.) Because one of defendant's attorneys was providentially absent when the case was called. [ Only one of them was accounted for on the ground of providential...
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