Stevens v. State, 23623.

• Citation: 49 Ga.App. 248,174 S.E. 718
• Decision Date: 18 May 1934
• Docket Number: No. 23623.,23623.
• Parties: STEVENS . v. STATE.
• Court: Georgia Court of Appeals

49 Ga.App. 248

174 S.E. 718

STEVENS .

v.STATE.

No. 23623.

Court of Appeals of Georgia,

Division No. 1.

May 18, 1934.

Rehearing Denied June 11, 1934.

Syllabus by the Court.

1. The court did not err in overruling the motion for continuance under the showing made.

2. The right of a thorough and sifting cross-examination is not abridged in confining it to matters that are in some way germane to the issues being submitted and where it is not attempted to be shown that facts which are sought to be developed are remotely connected with the case there is no error in excluding them because of their immateriality.

3. There is no merit in the exception to the failure of the court to charge upon "larceny from the house." The evidence showed a breaking and entering of a storehouse and the larceny of goods of the value of $500.

4. The evidence amply supports the verdict and the court did not err in overruling the motion for new trial.

Error from Superior Court, Berrien County; W. R. Smith, Judge.

P. D. Stevens was convicted of burglary, and he brings error.

Affirmed.

J. P. Knight, L. J. Courson, and M. S. Potter, all of Nashville, and Joe Kirbo, M. E. O'Neal, both of Bainbridge, for plaintiff in error.

H. C. Morgan, Sol. Gen., of Homerville, and I. H. Corbitt, and Wm. Story, both of Nashville, for the State.

GUERRT, Judge.

The defendant was indicted at the March term, 1933, of the superior court of Berrien county charged with the offense of burglary. The indictment was returned March 20th. The case was continued until the adjourned term of said court held on April 17th. Defendant lias been confined in jail since a few days after the alleged commission of the crime in November, 1932. The evidence for the state was that the defendant was seen driving around the streets of Nashville, Ga., in a maroon colored Chevrolet coach about 11:30 o'clock at night with two other men in the car with him. That this car was seen to drive to the door of the storehouse burglarized and stop there and remain there some fifteen or twenty minutes. A witness for the state testified that he came by this storehouse while this car was standing there and that he saw two men coming out of the storehouse and thought that he recognized one of them as R F. Lawson. He identified the defendant as being the man sitting in the car under the wheel. He immediately ran and told the night watchman and some other men who also saw the car drive off. The sheriff and the owner of the store were called and it was found that the padlock on the door had been broken and 70, 000 cigarettes in cartons taken. The witness for the state testified that he saw several pasteboard boxes in the back of the car when he passed. Two letters addressed to the defendant, one at Bainbridge and the other at Thomasville, Ga., were found on the ground at the place that night. The car was identified as being the car belonging to the defendant and he admitted having been in Nashville that night. His home was in Thomasville.

1. At the call of the case a motion for continuance was made based on the absence of five witnesses, to wit, R. F. Lawson, G. C. Spurlin, Mrs. George Sampson, Dr. James Butler, and Freeman Butler. Three of these witnesses were character witnesses. A motion for continuance of a criminal case after the first term rests in the sound discretion of the court and even at the first term all discretion is not denied the trial court. The absent character witnesses lived in Thomas and Lowndes Counties, one of them being the solicitor general of the Southern Circuit. Another character witness Sheriff Davis of Thomas county was present. In the case of Taylor v. State, 135 Ga. 622, 70 S. E. 237, it was held that there was no abuse of discretion of the trial court in overruling a motion for continuance because of the absence of witnesses to prove...