James v. State , 150 Ga. 76 ( 1920 )

Gilbert, J.

1. All applications for continuances are addressed to the sound legal discretion of the court. Penal Code, § 992. “ Continuances on account of the absence of counsel are not favored, and a strict showing is required; particularly where other competent counsel have been secured, and no injury is shown.” Poppell v. State, 71 Ga. 276 (2).

2. Where such a motion was predicated on a statement of associate counsel “ in his place,” that the absent counsel “ was in New York State, sick, that he left Georgia for the purpose of regaining his health, and that he would not be physically able to appear in court if he was here,” it was not error to overrule the motion. The evidence of the absent counsel’s illness was too indefinite as to time‘and when employment began, and appeared to be based upon the opinion of one other than a physician, without disclosing the source of his information. Loyd v. State, 45 Ga. 57 (4).

No. 1817. March 9, 1920.

Indictment for murder. Before Judge Kent. Twiggs superior court. November 5, 1919.

John B. Cooper and W. 0. Cooper Jr., for plaintiff in error. Clifford Walker, attorney-general, B. L. Stephens, solicitor-general, and M. C. Bennet, contra.

3. A new trial will not be granted on account of newly discovered evidence to the effect that the “ defendant’s mind is weak and has been weak all of his life,” and from observation of that fact the witness believes the defendant does not know the distinction between right and wrong; especially where the affidavits in regard to diligence fail to meet the requirements of the law. It is not made to appear that the counsel for the accused, who was absent at the trial, did not know of the alleged newly discovered facts prior to the trial of the case.

4. The remaining assignments of error, in so far as they are complete and sufficient in themselves, do not'show cause for the grant of a new trial. The verdict was supported by evidence.

Judgment affirmed.

All the Justices concur, except Beck, P. J., absent on.accoimt of sickness.