Wheeless v. State

Court of Appeals of Georgia

Wheeless v. State

17 S.E.2d 190, 66 Ga. App. 60, 1941 Ga. App. LEXIS 116

CourtCourt of Appeals of Georgia

DecidedOctober 17, 1941

Docket29235.

StatusPublished

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Wheeless v. State, 17 S.E.2d 190, 66 Ga. App. 60, 1941 Ga. App. LEXIS 116 (Ga. Ct. App. 1941).

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Opinion

Gardner, J.

The defendant was convicted of breaking and entering an automobile and stealing therefrom articles of value, in violation of Code § 26-2637. He filed a motion for new trial on the usual general grounds and afterwards amended the motion by adding one special ground. The court denied the motion and he excepted. The assignments of error on the general grounds are abandoned. We will therefore consider only the assignment of error on the special ground. When the case was called the defendant made a motion for continuance on account of the absence of a witness. The motion in no wise met the requirements of Code § 81-1410. This being true, we have only to consider whether the judge abused his discretion in denying the motion .under the allegations of the special ground. It does not appear therefrom what the defendant expected to prove by the absent witness at the time the motion ivas made; it does not appear that the motion was not made for delay; it does appear that the witness was then out of the State; it does appear that he had not been subpoenaed; it does not appear what diligence had been exercised; and it does not appear that the court had any assurance whether he would ever appear, by process or otherwise. The judge did not abuse his discretion in overruling the motion. Williams v. State, 69 Ga. 11 (3); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814) ; Williams v. State, 25 Ga. App. 380 (2) (103 S. E. 685).

Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.

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Gardner, J.

The defendant was convicted of breaking and entering an automobile and stealing therefrom articles of value, in violation of Code § 26-2637. He filed a motion for new trial on the usual general grounds and afterwards amended the motion by adding one special ground. The court denied the motion and he excepted. The assignments of error on the general grounds are abandoned. We will therefore consider only the assignment of error on the special ground. When the case was called the defendant made a motion for continuance on account of the absence of a witness. The motion in no wise met the requirements of Code § 81-1410. This being true, we have only to consider whether the judge abused his discretion in denying the motion .under the allegations of the special ground. It does not appear therefrom what the defendant expected to prove by the absent witness at the time the motion ivas made; it does not appear that the motion was not made for delay; it does appear that the witness was then out of the State; it does appear that he had not been subpoenaed; it does not appear what diligence had been exercised; and it does not appear that the court had any assurance whether he would ever appear, by process or otherwise. The judge did not abuse his discretion in overruling the motion. Williams v. State, 69 Ga. 11 (3); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814) ; Williams v. State, 25 Ga. App. 380 (2) (103 S. E. 685).

Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.

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17 S.E.2d 190, 66 Ga. App. 60, 1941 Ga. App. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeless-v-state-gactapp-1941.

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