Kimberly v. State

4 Ga. App. 852

• Court: Court of Appeals of Georgia
• Decided: October 13, 1908
• Docket: 1380
• Status: Published

Opinion

Russell, J.

1. The trial judge may properly overrule a motion for a continuance, even where all the statutory requirements for procuring the presence of a witness who is absent have apparently been complied with, if a counter-showing has been made by which it is satisfactorily made to appear to him that the real purpose of the continuance is merely to secure delay. The credibility of witnesses introduced in sup-' port of a motion for continuance, and upon a counter-showing thereto, respectively, is to be determined by the trial judge, and his discretion in refusing a continuance, where a counter-showing is made, will not be controlled, unless manifestly abused.

Accusation of assault and battery, from city court of Eastman - — Judge Griffin. Augtst 33, 1908.

Submitted October 8, Decided October 13, 1908. John F. DeLacy, for plaintiff in error. W. M. Morrison, solicitor, contra.

2. In a ease in which it appeared that the accused relied, for his defense, upon the right of a parent to protect his child, and in which it appeared, from the evidence,' that his son and another young man were quarreling, it was not reversible error to charge the jury, that “in order for the parent to be justified in taking the part of his child, the child would have to be justified in what it was doing; in other words, if the child was justified in it, the parent would be justified; but if the contrary appear, he would not be justified,” where this instruction was immediately qualified by the statement: “provided the parent knew of the want of justification in the child.” As a general rule, a parent has the right to protect his child from any assault; but under the evidence in this case, even the instruction given was as favorable as the defendant was entitled to receive.

3. The charge upon the subject of opprobrious words as a justification was erroneous, because not justified by evidence that opprobrious words were used. Threats of personal violence are not necessarily opprobrious oif abusive, and the language used by the court, though inappropriate, suggested a defense to which the defendant was not entitled.

4. Where the jury, after having been charged by the court,- returns into court and requests an instruction upon a specific question, it is not error for the judge to confine his instruction to the specific point suggested by the jury’s inquiry. ' Judgment, affirmed.