Thompson v. State

• Decision Date: 08 March 1935
• Docket Number: 24530.
• Citation: 179 S.E. 200,51 Ga.App. 5
• Parties: THOMPSON v. STATE.
• Court: Georgia Court of Appeals

179 S.E. 200

51 Ga.App. 5

THOMPSON v. STATE.

No. 24530.

Court of Appeals of Georgia, First Division

March 8, 1935

Syllabus by the Court.

1. While ample time to prepare for trial should be allowed to one accused of crime, it is the duty of a defendant who has given bond for his appearance at a specified term of the court to employ counsel and take any other steps essential to his defense in advance of the term of the court at which he is bound to appear, and a motion for postponement by one who had waited until the case had been sounded for trial, or until the day of the trial, to employ his counsel, although he was previously under bond to appear at the court, was properly overruled.

2. It is well settled that the granting of a new trial upon the ground of newly discovered evidence is not favored by the courts (McDuffie v. State, 2 Ga.App. 401, 58 S.E 544), and, where such evidence presented is in the main cumulative and impeaching (Walker v. State, 126 Ga 588, 55 S.E. 483; Lawhorn v. State, 155 Ga. 373, 116 S.E. 822; Drane v. State, 130 Ga. 349, 60 S.E. 863; Brantley v. State, 16 Ga.App. 6, 84 S.E. 131), and such evidence does not render clear and positive that which was before equivocal and uncertain (Dougherty v. State 7 Ga.App. 91, 66 S.E. 276) and would not probably cause the rendition of a different verdict on a new trial ( Paden v. State, 17 Ga.App. 112, 86 S.E. 287), this court will not interfere with the judgment of the trial judge refusing a new trial. Especially is this true where the affidavits for new trial are met by a counter showing by the state. Wright v. State, 18 Ga.App. 705, 90 S.E. 285.

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

Error from City Court of Columbus; G. Y. Tigner, Judge.

Charlie Thompson was convicted of assault and battery, and he brings error.

Affirmed.

Jos. O McGehee, of Columbus, for plaintiff in error.

B. H. Chappell, Sol., and W. W. Battle, both of Columbus, for the State.

GUERRY Judge.

The defendant, Charlie Thompson, was charged with having, on September 4, 1934, committed an assault and battery on Mrs Pauline Melton. Defendant was arrested on September 25, 1934, at which time he was placed in jail, and he remained there until October 2, when he was again released on bond. The case was set for trial October 3, and, when called, the defendant announced that he had employed Mr. Flournoy to represent him and that Mr. Flournoy was in Atlanta, but would "be back tomorrow," and he would be ready for trial at that time. Witnesses for defendant were subp naed to be present the 4th of October. When the case was called on the next day, Mr. Flournoy stated that he had not been employed and would not represent him, and so told the defendant the night before. Defendant, at the call of his case, employed Mr. McGehee. Mr. McGehee thereupon stated to the court that he had just been employed...