A defendant who fails to use the subpoena power provided for in Code Section 17-7-191, when it is within his power to do so, shall not be entitled to a continuance because a witness material to his defense is not in attendance at the term of the court when his case is called for trial, if he is prosecuted for the same criminal act.
(Ga. L. 1873, p. 33, § 3; Code 1873, § 3848; Code 1882, § 3848; Penal Code 1895, § 919; Penal Code 1910, § 944; Code 1933, § 27-415.)
Cross references.- Uniform Act to Secure the Attendance of Witnesses from Without the State, § 24-13-90 et seq.
JUDICIAL DECISIONS
O.C.G.A. § 17-7-192 does not require subpoena issued by clerk of court in addition to an order of the superior court commanding the presence of an inmate witness. Grant v. State, 212 Ga. App. 565, 442 S.E.2d 899 (1994).
Abuse of discretion in denial of motion.
- Denial of a motion for continuance on the ground of an absent witness lies within the discretion of the trial court and unless manifestly abused, the denial thereof will not be disturbed. Wellons v. State, 144 Ga. App. 218, 240 S.E.2d 768 (1977).
Motion for continuance should state how attendance to be procured.
- On the hearing of a motion for a continuance, based upon the absence of a material witness of the defense, when the court is authorized to find that the witness was beyond the jurisdiction of the court, that the witness's absence was not temporary, and that the court was powerless to force the witness to attend, although the movant states that the movant expected to have the witness present at the next term of the court, if possible, in these circumstances the motion should go further and state the means whereby the movant expects to procure the witness's attendance, as that the witness had promised to attend, or that the movant has some other ground for the movant's expectation. Wright v. State, 71 Ga. App. 346, 30 S.E.2d 839 (1944).
When continuance because of absence of defense witness unavailable.
- When, after being committed by a magistrate, the defendant fails to exercise the defendant's right to subpoena a defense witness who is then available for service, and attempts to serve the witness after the defendant's indictment one month later, at which time the witness has left the county, the defendant has not employed means for securing the witness which were within the defendant's power to employ and therefore the defendant is not entitled to a continuance because of the absence of such witness. Coker v. State, 87 Ga. App. 411, 74 S.E.2d 12 (1953).
Requirements for continuance when witnesses in county.
- As to witnesses residing in the county, the accused must, in order to make a showing complete, either show that the accused has had the witnesses subpoenaed under the provisions of the preceding sections, or else that there has been a commitment trial. Chatfield v. State, 10 Ga. App. 40, 72 S.E. 513 (1911).
Proof of materiality of testimony may be required. Hood v. State, 93 Ga. 168, 18 S.E. 553 (1893).
Applicability to procedure to secure attendance of out-of-state witnesses.
- Provisions of O.C.G.A. § 17-7-192, which deal with the accused's right to obtain subpoenas for such absent witnesses as the accused may deem material for the accused's defense, did not apply to the procedure set forth in the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. T. 24, C. 10, Art. 5 (see O.C.G.A. § 24-13-90 et seq.). Farrell v. State, 160 Ga. App. 321, 287 S.E.2d 318 (1981).
Cited in Carter v. State, 11 Ga. App. 141, 74 S.E. 846 (1912); West v. State, 68 Ga. App. 56, 22 S.E.2d 115 (1942); Parrish v. State, 125 Ga. App. 97, 186 S.E.2d 541 (1971); Reid v. State, 129 Ga. App. 657, 200 S.E.2d 454 (1973); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Gilmore v. State, 154 Ga. App. 429, 268 S.E.2d 693 (1980); Cave v. State, 171 Ga. App. 22, 318 S.E.2d 689 (1984); Sosebee v. State, 190 Ga. App. 746, 380 S.E.2d 464 (1989).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Continuance, §§ 10 et seq., 54 et seq. 21 Am. Jur. 2d, Criminal Law, §§ 293 et seq., 381.
C.J.S.- 17 C.J.S., Continuances, §§ 35, 36. 22 C.J.S., Criminal Procedure and Rights of the Accused, § 895 et seq.
ALR.- Right of accused to continuance because of absence of witness who is fugitive from justice, 42 A.L.R.2d 1229.
ARTICLE 9 DISCOVERY
Editor's notes.
- For current provisions as to discovery in general, see O.C.G.A. § 17-16-1 et seq.