Reid v. State , 23 Ga. 190 ( 1857 )

By the Court. —

Bunning, J.

delivering the opinion.

Ought the Court below to have sustained the motion for a new trial ?

The counsel for the plaintiffs in error, relied before this Court, on only two of the grounds contained in the motion, the last two. We think, with them, that there is nothing in the other .grounds.

Of those two, the last will be first considered.

It appears, that the testimony of the witness referred to in this ground, as “another witness,” went to prove an alibi; and that the State introduced two witnesses who swore, that they would not believe him on his oath.

This being so, the testimony of the absent witness, if it had been in, would have been extremely important to the defence. It is true, that that testimony might have been only “cumulative,” but a case may be such, that cumulative evidencej will be of the utmost value in it. And the case of a defence by an alibi, will, almost always, be such a case. There cannot well be too much evidence, to make out a satisfactory alibi.

A motion for a continuance, put on the ground of “the absence of a witness,” ought tobe granted if his testimony will be “material,” So says the 36th common law rule.

There is no exception of the case in which the testimony, whilst being “material,” is only “cumulative.”

[1.] We think then, that the Court should either have granted the motion for a continuance, or required a pledge from the other side, that they would not offer evidence to destroy the credit of the witness that was present.

And therefore, we think, that there ought to be a new trial.

As to the other of the two grounds — the fourth. We think that there is nothing in it.

The whole subject of the examination of witnesses, is one that is almost exclusively within the discretion of the Court. The question whether either party may introduce new evidence, after he has closed his evidence, is a question for this discretion. And it is a universal rule, that a decision made by a Court upon a matter, that lies within its discretion, is not to be disturbed by another Court, unless the decision evinces some abuse of that discretion. We do not see, that there was any abuse by the Court below, of its discretion, in its allowing the State to introduce the witness after the argument to the jury had commenced. It does not appear that what was then proved by that witness, was a surprise on the prisoners. They asked for no continuance, they asked for no delay — in order to enable them, to meet the new testimony. They did not even suggest, that they doubted, whether that new testimony might not be untrue.

[2.] This being so, we think, that the Court in the admission of the new testimony did nothing that can be called an abuse of its discretion.

This conclusion is at variance with that in Judge vs. The State, 8 Ga. Rep. 175, but nevertheless, we think, that this is the right conclusion.

Judgment reversed.