Stamper v. State

Harwell, J. (After stating the foregoing facts.) The court, as the record shows, sent for Mrs. Barnes, the woman with whom the defendant is alleged to have had sexual intercourse,-and she testified in his behalf; so that the motion for a continuance on [800] the ground of her absence need not be considered. Now as to the motion to continue in order that the defendant might subpoena the other two witnesses, Butterworth and Graham, and in order that his attorney might have further time for preparation to try his case. It appeared on the showing that the defendant had been tried and bound over to that term of the court (the term at which he was tried) by Justice Luke, under bail, on the same charge as that upon which the indictment was found, and that none of the witnesses upon whose absence the showing for a continuance was made had been subpoenaed by the defendant. The commitment by Justice Luke evidently refers to the preliminary trial before the justice of the peace. It does not appear when the commitment trial was had, but it does appear that the alleged offense took place on August 5, 1917, and that the defendant was arrested that night, and that the final trial in the superior court took place on August 29, 1917; so that the defendant evidently had ample time to subpoena his witnesses, employ a lawyer, and prepare for trial. "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 city court, to employ counsel and take any other steps essential to his defense, in advance of the term of court at which he is bound to appear; and a motion for continuance by one who had waited until the case had been sounded for trial, to employ his counsel, although he was previously under bond to appear at the court, was properly overruled.” Walker v. State, 11 Ga. App. 251 (74 S. E. 1100); Benfroe v. State, 8 Ga. App. 676 (70 S. E. 70); Grusin v. State, 10 Ga. App. 149 (75 S. E. 350); Shivers v. State, 53 Ga. 149 (1); Lewis v. State, 89 Ga. 803 (15 S. E. 772); Jones v. State, 115 Ga. 814 (2) (42 S. E. 271); Fitzgerald v. State, 126 Ga. 556 (55 S. E. 482). Under the facts appearing in the instant case, the trial judge did not abuse his discretion in refusing to grant a continuance. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial. Judgment affirmed. Broyles, P. J., and Bloodworih, J., concur.