Tinsley v. State
| Decision Date | 31 July 1908 |
| Docket Number | 1,062. |
| Citation | 62 S.E. 93,4 Ga.App. 611 |
| Parties | TINSLEY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An application to continue a motion for a new trial in order to enable the movant to obtain an affidavit as to alleged newly discovered testimony is addressed to the sound legal discretion of the presiding judge. In the present case there was no abuse of discretion.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2407.]
An alleged erroneous instruction of the court to the jury is not to be viewed insularly and apart from the context.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1990-1995.]
An erroneous instruction to the jury will not work a reversal if the verdict as rendered makes it manifest that the finding of the jury was in no wise affected thereby.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3161.]
No reversible error appears.
Error from Superior Court, Terrell County; W. C. Worrill, Judge.
Will Tinsley was convicted of assault with intent to kill, and brings error. Affirmed.
Jas. G. Parks, for plaintiff in error.
J. A. Laing, Sol. Gen., R. R. Arnold, J. B. Ridley, and H. A. Wilkinson, for the State.
The plaintiff in error excepts to the overruling of his motion for new trial, and also to the refusal of the trial judge to continue the motion in order to enable him to complete an extraordinary ground. At the time set for the hearing of the motion the movant's attorney requested that he be allowed a few days longer in which to prepare an additional amendment, on the ground of newly discovered evidence of one Connor, who was in Quincy, Fla., but was expected to return home in a very short time, and stated to the court that the substance of the newly discovered evidence was that Connor was at the house of Emma Rumney at the time the defendant was accused of shooting the prosecutor, and saw the prosecutor get up from his chair and draw a pistol and advance on the defendant, that the defendant began to back and the prosecutor kept advancing, that he saw him get into a tussle and during the tussle the pistol fired, and that the prosecutor was trying to pull the pistol from the defendant at the time it fired. Movant's counsel admitted that he had not seen or talked with the proposed witness in person. The refusal to allow the additional time in which to submit the proposed amendment and the affidavit of Connor in support thereof was placed upon the ground that the movant had had ample time to prepare his case and upon the further ground that the alleged newly discovered evidence was merely cumulative and impeaching. The court proceeded to hear and determine the motion for new trial.
1. The rule that all applications for continuances are addressed to the sound legal discretion of the court, and that this discretion will not be interfered with unless manifestly abused, is applicable to the hearing of a motion for a new trial. The original motion was filed January 9, 1908. The hearing was first set for January 31, and was continued by proper order until February 8, 1908, which was the date upon which the further postponement was asked. Thus 30 days had elapsed between the original filing of the motion and the hearing, and it was not made to appear that counsel had not had time enough (after he was informed of the nature of Connor's testimony) to procure the witness' affidavit, even though he might have been in Florida. It is true that counsel stated that he had learned of this evidence only a few days before the hearing; but the term "a few days" is necessarily indefinite, and even a few days might be ample time in which to procure the affidavit of a witness in Quincy, Fla., if modern facilities for intercourse, such as mail, telephone, and...
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