Patton v. State

Court of Appeals of Georgia

Patton v. State

2 S.E.2d 511, 59 Ga. App. 871, 1939 Ga. App. LEXIS 425

CourtCourt of Appeals of Georgia

DecidedApril 4, 1939

Docket27398

StatusPublished

Cited by2 cases

This text of 2 S.E.2d 511 (Patton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Patton v. State, 2 S.E.2d 511, 59 Ga. App. 871, 1939 Ga. App. LEXIS 425 (Ga. Ct. App. 1939).

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Opinion

Guerry, J.

It did not appear from the motion for continuance in this case that the absent witness was a resident of the county at the time of the trial.. It did appear from the counter-showing that the witness had left the county immediately after the preceding term of the court, and although diligent search had been made for him he had not been seen or heard of since that time. Although the movant testified that he expected to have the witness or the benefit of his testimony at the next term of court, in view of the testimony of the sheriff as to his inaccessibility the court was authorized to disregard the showing made. Howard v. State, 7 Ga. App. 61, 63 (65 S. E. 1076); Howard v. State, 26 Ga. App. 431 (106 S. E. 732); Power v. State, 8 Ga. App. 408 (69 S. E. 315); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814). Under the facts [872]*872the judge did not abuse his discretion in overruling the motion for continuance.

The sustaining of a special demurrer to an indictment, as to statements contained therein which do not constitute a crime and which are surplusage, does not void the indictment as to the part remaining which charges a crime, and does not constitute an amendment of the indictment. See Brooks v. State, 47 Ga. App. 226 (2) (170 S. E. 406); s. c. 178 Ga. 784, 787 (17 S. E. 6). The general demurrer was properly overruled.

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

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.

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Guerry, J.

It did not appear from the motion for continuance in this case that the absent witness was a resident of the county at the time of the trial.. It did appear from the counter-showing that the witness had left the county immediately after the preceding term of the court, and although diligent search had been made for him he had not been seen or heard of since that time. Although the movant testified that he expected to have the witness or the benefit of his testimony at the next term of court, in view of the testimony of the sheriff as to his inaccessibility the court was authorized to disregard the showing made. Howard v. State, 7 Ga. App. 61, 63 (65 S. E. 1076); Howard v. State, 26 Ga. App. 431 (106 S. E. 732); Power v. State, 8 Ga. App. 408 (69 S. E. 315); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814). Under the facts [872]*872the judge did not abuse his discretion in overruling the motion for continuance.

The sustaining of a special demurrer to an indictment, as to statements contained therein which do not constitute a crime and which are surplusage, does not void the indictment as to the part remaining which charges a crime, and does not constitute an amendment of the indictment. See Brooks v. State, 47 Ga. App. 226 (2) (170 S. E. 406); s. c. 178 Ga. 784, 787 (17 S. E. 6). The general demurrer was properly overruled.

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

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.

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2 S.E.2d 511, 59 Ga. App. 871, 1939 Ga. App. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patton-v-state-gactapp-1939.

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