In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.
(Orig. Code 1863, § 3451; Code 1868, § 3471; Code 1873, § 3522; Code 1882, § 3522; Civil Code 1895, § 5129; Penal Code 1895, § 962; Civil Code 1910, § 5715; Penal Code 1910, § 987; Code 1933, § 81-1410; Ga. L. 1959, p. 342, § 1.)
Cross references.- Corresponding provision relating to civil procedure, § 9-10-160.
JUDICIAL DECISIONSANALYSIS
General Consideration
O.C.G.A.
§ 17-8-25 not applicable to sentencing hearing. - O.C.G.A. § 17-8-25 is not applicable to the scheduling of the post-verdict nonjury sentencing hearing; rather, the scheduling of this hearing rests within the sound discretion of the trial court. Scott v. State, 216 Ga. App. 692, 455 S.E.2d 609 (1995).
This section imposes requirements that must accompany an application for a continuance. Oliver v. State, 146 Ga. App. 798, 247 S.E.2d 487 (1978).
Former Code 1933,
§ 81-1410 especially applicable in civil cases. - Former Code 1933, § 81-1410 (see O.C.G.A. §§ 9-10-160 and17-8-25), which states as one of the requirements for an application for continuance on the ground of absence of a material witness that it must be shown the witness has been subpoenaed, applies especially to civil cases. Waters v. State, 85 Ga. App. 79, 68 S.E.2d 233 (1951).
Requirements of this section are absolute, and failure to comply therewith results in the court's refusal to consider the absence of the witness. McLendon v. State, 123 Ga. App. 290, 180 S.E.2d 567 (1971); Eze v. State, 195 Ga. App. 503, 393 S.E.2d 758 (1990); Knox v. State, 227 Ga. App. 447, 489 S.E.2d 582 (1997).
Each of the statutory requirements must be met before an appellate court may review a trial judge's discretion in denying a motion for continuance based upon the absence of a witness. Brown v. State, 169 Ga. App. 520, 313 S.E.2d 777 (1984); Curry v. State, 177 Ga. App. 609, 340 S.E.2d 250 (1986); Dorsey v. State, 203 Ga. App. 397, 416 S.E.2d 879 (1992); Caver v. State, 215 Ga. App. 711, 452 S.E.2d 515 (1994); Redd v. State, 222 Ga. App. 595, 474 S.E.2d 651 (1996); Choat v. State, 246 Ga. App. 475, 540 S.E.2d 289 (2000), recons. denied, overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Continuances in criminal cases are not governed by the strict rules of civil cases and the motion should be granted whenever the principles of justice appear to demand a postponement. Keller v. State, 128 Ga. App. 129, 195 S.E.2d 767 (1973).
Discretion of court.
- In civil and criminal cases alike, there is some discretion upon the part of the trial court, and the reviewing court is limited to the decision merely of whether the decision as made constitutes an abuse of discretion. Keller v. State, 128 Ga. App. 129, 195 S.E.2d 767 (1973).
Absence of material witness overseas.
- In a child molestation case, the trial court properly denied the defendant a continuance under O.C.G.A. § 17-8-22 based on the absence of the defendant's mother overseas; the defendant did not comply with several of the requirements of O.C.G.A. § 17-8-25, including the materiality requirement, and other witnesses testified that the witnesses saw no improper contact between the defendant and the teenagers involved. Krirat v. State, 286 Ga. App. 650, 649 S.E.2d 786 (2007), cert. denied, No. S07C1788, 2007 Ga. LEXIS 745 (Ga. 2007).
Defendant received constitutionally ineffective assistance of counsel because counsel was deficient in failing to subpoena a defense witness because the defendant was not able to have the trial continued if the defense witness did not appear; the defense witness's testimony would have called into question the credibility of the state's witness as the defense witness told defense counsel that the defense witness saw the state's witness flashing a revolver while looking for the victim to collect on a debt two or three days before the shooting; and defense counsel's deficient performance prejudiced the defendant as the lynchpin of the state's case against the defendant was the credibility of the state's witness. Fisher v. State, 299 Ga. 478, 788 S.E.2d 757 (2016).
Denial of second continuance held proper.
- In light of the facts that a defendant had seven months since being incarcerated to establish an alibi defense, that the defendant had previously been granted a continuance for the same reason, and that the defendant had two months from the time of that continuance to identify an alibi witness, the trial court did not err in denying the defendant's second motion for a continuance. Matthews v. State, 285 Ga. App. 859, 648 S.E.2d 160 (2007).
If the subpoena appears to be valid, the subpoena is sufficient. Horton v. State, 112 Ga. 27, 37 S.E. 100 (1900).
Denial of motion for failure to make required allegations.
- When the defendant establishes that the witness is absent without permission and has been subpoenaed, but fails to establish that the testimony is material and that the defendant would be able to procure that witness for the next term of court and also fails to state the facts expected to be proved by such witness and that the motion is not made for delay, there is no error in denial of the application for continuance. Oliver v. State, 146 Ga. App. 798, 247 S.E.2d 487 (1978).
Denial of the defendant's motion for continuance based upon an absent witness was proper because the defendant failed to show that the witness was subpoenaed, and that the witness resided within 100 miles of the place of trial. Edwards v. State, 224 Ga. App. 332, 480 S.E.2d 246 (1997).
Subpoena insufficient when not alleged not to be for delay.
- Showing for a continuance upon the ground of the absence of a witness is insufficient if it omits to state that the application is not made for the purpose of delay. Newsome v. State, 61 Ga. 481 (1878); Buckner v. State, 33 Ga. App. 559, 127 S.E. 154 (1925); Sutton v. State, 70 Ga. App. 499, 28 S.E.2d 663 (1944).
Even if showing is complete in other respects the application must show that the application was not made for purposes of delay. Cobb v. State, 110 Ga. 314, 35 S.E. 178 (1900); Long v. State, 25 Ga. App. 22, 102 S.E. 359, cert. denied, 25 Ga. App. 840 (1920).
Defendant need not testify as to defendant's intention, if it is apparent from the evidence adduced in behalf of the defendant's motion that it is not the defendant's purpose to delay the case but only to procure the attendance of witnesses. Brooks v. State, 3 Ga. App. 458, 60 S.E. 211 (1908).
Not sufficient that subpoena has been sued out for the witness.
- It must appear that the witness has been subpoenaed and it is not sufficient that a subpoena has been sued out for the witness. Edwards v. State, 69 Ga. 737 (1882).
Not sufficient that interrogatories exist. Cogswell v. State, 49 Ga. 103 (1873); Kidd v. State, 101 Ga. 528, 28 S.E. 990 (1897); Walker v. State, 118 Ga. 34, 44 S.E. 850 (1903).
Mere showing of absence of subpoenaed material witness insufficient.
- Showing that witness was absent, that the witness had been subpoenaed, and that the witness's testimony was material fell short of the requirements in O.C.G.A. § 17-8-25 for grant of a continuance. Tomlin v. State, 170 Ga. App. 123, 316 S.E.2d 570 (1984).
Refusal to grant continuance based on absence of victim of assault not error.
- Trial court did not err in refusing to grant the defendant a continuance based on the absence of the victim because the defendant made no specific showing that the victim's testimony was material, and only speculated that the victim may not have wanted to prosecute the case. Anthony v. State, 276 Ga. App. 107, 622 S.E.2d 450 (2005).
Delay in subpoena of witnesses and failure to allege their expected testimony.
- When a defendant, out on bond, knows that a case of the state against the defendant is to be tried during a coming term of court and waits until the day before the trial of the case to subpoena witnesses, and upon a motion made by the defendant for a continuance because of the absence of witnesses makes no showing as to the expected testimony of the witnesses, the trial court does not err in refusing to grant a continuance until the witnesses can be brought in. Harris v. State, 118 Ga. App. 769, 165 S.E.2d 462 (1968).
Delay in subpoena of witnesses.
- When the defendant's motion for continuance is based upon the absence of a material witness for whom a subpoena was not issued by the defendant until the morning the trial was to begin and who has not been served therewith at the time the motion was made, there is no error in overruling the motion. Eady v. State, 129 Ga. App. 656, 200 S.E.2d 767 (1973).
Failure to subpoena witnesses.
- When error is assigned on grounds of the refusal of the court to grant a continuance because of the absence of defense witnesses, and upon the hearing of the motion it appears that neither witness was under subpoena, the movant has failed to meet an essential requirement of this section, and the Court of Appeals cannot hold that the trial court abused the court's discretion in denying the motion. McNabb v. State, 69 Ga. App. 885, 27 S.E.2d 246 (1943).
If the trial court granted the accused at least one previous continuance to secure the same witness, and the accused offered no evidence that the witness was properly subpoenaed, the court did not abuse the court's discretion in denying a motion for continuance. Brandon v. State, 236 Ga. App. 203, 511 S.E.2d 573 (1999).
Requirements of O.C.G.A. § 17-8-25 were not satisfied when the defendant failed, during a hearing on a motion for a new trial, to call the absent witness who had been claimed as the basis for an application for a continuance. Letson v. State, 236 Ga. App. 340, 512 S.E.2d 55 (1999).
Trial court did not abuse the court's discretion in denying the defendant's request for a continuance due to the absence of a witness as the defendant failed to subpoena the witness. Stevens v. State, 261 Ga. App. 73, 581 S.E.2d 685 (2003).
Trial court erred in denying the defendant's motion for a continuance of the hearing on the defendant's motion for new trial so that the defendant could produce an alibi witness to testify at that hearing because counsel did not properly serve a subpoena on the alibi witness as email was not a proper means of serving a subpoena, and the defendant made no assertion that the defendant attempted to subpoena the alibi witness as statutorily required. Smith v. State, 308 Ga. 81, 839 S.E.2d 630 (2020).
Witness that had not been subpoenaed.
- Trial counsel was deficient on the ground that the defendant's counsel's motion for continuance did not comply with O.C.G.A. § 17-8-25 because the witness in question had not been subpoenaed and, thus, counsel could not comply with the statute; the defendant did not show that the trial court's denial of the motion for continuance was reversible error and did not demonstrate ineffective assistance of counsel. Presley v. State, 307 Ga. App. 528, 705 S.E.2d 870 (2011).
Failure to show witness was subpoenaed in the denial of the defendant's motion for continuance, when the defendant failed to show that the witness was subpoenaed, that the witness's testimony would be material, or that appellant knew any facts expected to be proved by the witness. Dorsey v. State, 203 Ga. App. 397, 416 S.E.2d 879 (1992).
Continuance may be refused if witness is inaccessible for next term. Howard v. State, 7 Ga. App. 61, 65 S.E. 1076 (1909); Boyd v. State, 17 Ga. App. 162, 86 S.E. 411 (1915); Luttrell v. State, 176 Ga. App. 508, 336 S.E.2d 369 (1985).
When moving party fails to show that an absent witness' testimony could be expected to be procured at the next term of court, there is no abuse of discretion in refusing to grant a continuance at trial nor any error in denying the movant's motion for a new trial on this ground. Ledford v. State, 173 Ga. App. 474, 326 S.E.2d 834 (1985).
Exceptions to rule that witness not be absent by movant's permission.
- An exception to the rule that witness must not be absent by permission of movant exists if the prosecuting solicitor (now district attorney) told the movant that presence of witnesses was not required. Polite v. State, 78 Ga. 347 (1886).
Failure of officer to serve subpoena on witness.
- An exception to the requirement that a witness be served is found in former Penal Code 1895, § 961 (see O.C.G.A. § 17-8-33), which does not require service of a subpoena when a proper officer fails to serve witness within the jurisdiction of the court. Paulk v. State, 5 Ga. App. 567, 63 S.E. 659 (1909), later appeal, 8 Ga. App. 704, 70 S.E. 50 (1911); Hobbs v. State, 8 Ga. App. 53, 68 S.E. 515 (1910).
Failure to serve subpoena on deputy.
- Trial court did not err in granting the state's motion for continuance under O.C.G.A. § 17-8-33(a) because, while a subpoena was issued for an absent witness, a former deputy, the sheriff's office failed to serve the subpoena because the former deputy was subpoenaed to appear on the date in a separate case, however, the other case had settled and the former deputy was absent from court. Dowd v. State, 280 Ga. App. 563, 634 S.E.2d 509 (2006).
Continuance denied despite inability to contact state medical examiner.
- Trial court did not abuse the court's discretion in denying the defendant's motion for a continuance on the ground that the defendant had not been able to contact the state medical examiner who conducted the autopsy on the victim. At the time the motion was argued, the defendant knew that the state would not be calling the examiner; moreover, as there was no dispute as to the victim's cause of death, stabbing, the examiner's testimony would not have been material to the defense. Hudson v. State, 284 Ga. 595, 669 S.E.2d 94 (2008).
Cited in Turner v. State, 70 Ga. 765 (1883); Moseley v. State, 74 Ga. 404 (1884); Parker v. State, 74 Ga. 836 (1885); Pyburn v. State, 84 Ga. 193, 10 S.E. 733 (1890); Kennedy v. State, 101 Ga. 559, 28 S.E. 979 (1897); Paulk v. State, 5 Ga. App. 567, 63 S.E. 659 (1909); Hobbs v. State, 8 Ga. App. 53, 68 S.E. 515 (1910); Solomon v. State, 10 Ga. App. 469, 73 S.E. 623 (1912); Dickens v. State, 137 Ga. 523, 73 S.E. 826 (1912); Tolbert v. State, 12 Ga. App. 685, 78 S.E. 131 (1913); Williams v. State, 13 Ga. App. 179, 78 S.E. 1012 (1913); Burnsed v. State, 14 Ga. App. 832, 82 S.E. 595 (1914); Terry v. State, 15 Ga. App. 108, 82 S.E. 635 (1914); Johnson v. State, 16 Ga. App. 287, 85 S.E. 204 (1915); Amerson v. State, 18 Ga. App. 176, 88 S.E. 998 (1916); Fudge v. State, 18 Ga. App. 312, 89 S.E. 374 (1916); Watts v. State, 20 Ga. App. 182, 92 S.E. 966 (1917); James v. State, 23 Ga. App. 534, 98 S.E. 737 (1919); Danzley v. State, 25 Ga. App. 170, 102 S.E. 915 (1920); Williams v. State, 25 Ga. App. 380, 103 S.E. 685 (1920); Teems v. State, 34 Ga. App. 594, 130 S.E. 216 (1925); Evans v. State, 167 Ga. 261, 145 S.E. 512 (1928); Smith v. State, 170 Ga. 234, 152 S.E. 482 (1930); Clarke v. State, 41 Ga. App. 556, 153 S.E. 616 (1930); Wells v. State, 43 Ga. App. 347, 158 S.E. 641 (1931); Whitehead v. State, 43 Ga. App. 401, 158 S.E. 917 (1931); Reese v. State, 44 Ga. App. 251, 161 S.E. 156 (1931); Walker v. State, 52 Ga. App. 108, 182 S.E. 524 (1935); Anderson v. State, 190 Ga. 455, 9 S.E.2d 642 (1940); Orr v. State, 63 Ga. App. 352, 11 S.E.2d 102 (1940); Holley v. State, 191 Ga. 804, 14 S.E.2d 103 (1941); Battey v. State, 65 Ga. App. 748, 16 S.E.2d 441 (1941); Morris v. State, 66 Ga. App. 37, 16 S.E.2d 908 (1941); Woodward v. State, 197 Ga. 60, 28 S.E.2d 480 (1943); Brown v. State, 71 Ga. App. 522, 31 S.E.2d 85 (1944); Nobles v. State, 71 Ga. App. 802, 32 S.E.2d 545 (1944); Hall v. State, 202 Ga. App. 42, 42 S.E.2d 134 (1947); Nelson v. State, 84 Ga. App. 596, 66 S.E.2d 751 (1951); Griffin v. State, 85 Ga. App. 602, 69 S.E.2d 665 (1952); Lyons v. State, 94 Ga. App. 570, 95 S.E.2d 478 (1956); Whitehead v. State, 96 Ga. App. 382, 100 S.E.2d 139 (1957); Scoggins v. State, 98 Ga. App. 360, 106 S.E.2d 39 (1958); Johnson v. State, 215 Ga. 839, 114 S.E.2d 35 (1960); Beasley v. State, 115 Ga. App. 827, 156 S.E.2d 128 (1967); Gravely v. State, 127 Ga. App. 206, 192 S.E.2d 912 (1972); Jones v. State, 232 Ga. 771, 208 S.E.2d 825 (1974); Davis v. State, 135 Ga. App. 111, 217 S.E.2d 417 (1975); Davis v. State, 135 Ga. App. 584, 218 S.E.2d 297 (1975); Wilkerson v. State, 139 Ga. App. 725, 229 S.E.2d 529 (1976); Harrison v. State, 140 Ga. App. 296, 231 S.E.2d 809 (1976); Wilcox v. State, 238 Ga. 431, 233 S.E.2d 154 (1977); Holland v. State, 141 Ga. App. 422, 233 S.E.2d 497 (1977); Heard v. State, 141 Ga. App. 666, 234 S.E.2d 83 (1977); Gamarra v. State, 142 Ga. App. 196, 235 S.E.2d 652 (1977); Shaw v. State, 239 Ga. 690, 238 S.E.2d 434 (1977); Chandler v. State, 143 Ga. App. 608, 239 S.E.2d 158 (1977); Fouts v. State, 240 Ga. 39, 239 S.E.2d 366 (1977); Reaves v. State, 146 Ga. App. 409, 246 S.E.2d 427 (1978); Weathers v. State, 147 Ga. App. 64, 248 S.E.2d 21 (1978); Davis v. State, 153 Ga. App. 433, 265 S.E.2d 351 (1980); Gilmore v. State, 154 Ga. App. 429, 268 S.E.2d 693 (1980); Smith v. State, 154 Ga. App. 541, 268 S.E.2d 768 (1980); Gibson v. State, 158 Ga. App. 501, 280 S.E.2d 900 (1981); Wingfield v. State, 159 Ga. App. 69, 282 S.E.2d 713 (1981); Hornsby v. State, 159 Ga. App. 672, 284 S.E.2d 630 (1981); Baxter v. State, 159 Ga. App. 632, 284 S.E.2d 649 (1981); Hester v. State, 159 Ga. App. 642, 284 S.E.2d 659 (1981); Farrell v. State, 160 Ga. App. 321, 287 S.E.2d 318 (1981); Whatley v. State, 162 Ga. App. 106, 290 S.E.2d 316 (1982); Bryant v. State, 164 Ga. App. 543, 298 S.E.2d 272 (1982); Wilkerson v. Turner, 693 F.2d 121 (11th Cir. 1982); Wilson v. State, 250 Ga. 630, 300 S.E.2d 640 (1983); Brunetti v. State, 176 Ga. App. 184, 335 S.E.2d 414 (1985); Brock v. State, 177 Ga. App. 430, 339 S.E.2d 403 (1986); Hullender v. State, 256 Ga. 86, 344 S.E.2d 207 (1986); Neff v. State, 178 Ga. App. 777, 344 S.E.2d 740 (1986); Moore v. State, 179 Ga. App. 488, 347 S.E.2d 318 (1986); Rhinehart v. State, 181 Ga. App. 507, 352 S.E.2d 823 (1987); Thompkins v. State, 257 Ga. 113, 356 S.E.2d 207 (1987); McGuire v. State, 185 Ga. App. 233, 363 S.E.2d 850 (1987); Johnson v. State, 185 Ga. App. 475, 364 S.E.2d 609 (1988); Cook v. State, 185 Ga. App. 585, 364 S.E.2d 912 (1988); White v. State, 187 Ga. App. 301, 370 S.E.2d 50 (1988); Medley v. State, 194 Ga. App. 154, 390 S.E.2d 75 (1990); Mills v. State, 198 Ga. App. 527, 402 S.E.2d 123 (1991); Swint v. State, 199 Ga. App. 515, 405 S.E.2d 333 (1991); Pitts v. State, 202 Ga. App. 634, 415 S.E.2d 58 (1992); Riggins v. State, 206 Ga. App. 239, 424 S.E.2d 879 (1992); Bell v. State, 208 Ga. App. 337, 430 S.E.2d 777 (1993); Griggs v. State, 208 Ga. App. 768, 432 S.E.2d 591 (1993); Gay v. State, 220 Ga. App. 78, 467 S.E.2d 383 (1996); Adefenwa v. State, 221 Ga. App. 429, 471 S.E.2d 900 (1996); Pickens v. State, 225 Ga. App. 792, 484 S.E.2d 731 (1997); Hunter v. State, 237 Ga. App. 803, 517 S.E.2d 534 (1999); Bacon v. State, 239 Ga. App. 874, 521 S.E.2d 695 (1999); Couch v. State, 256 Ga. App. 822, 570 S.E.2d 57 (2002); Theophile v. State, 295 Ga. App. 517, 672 S.E.2d 479 (2009); Miller v. State, 351 Ga. App. 757, 833 S.E.2d 142 (2019).
Evidence
Demonstrating reasonable expectation that witness appear.
- Defendant who complied with all of the requirements of O.C.G.A. § 17-8-25 except one and demonstrated that the defendant expected the witness to be in court the next day, because officers were to get the witness, should have received a continuance. Miller v. State, 208 Ga. App. 20, 430 S.E.2d 159 (1993).
It was not incumbent upon defense counsel to state with certitude just when the witness would be available to testify. It was enough that defense counsel demonstrated that defense counsel reasonably expected that the witness's presence could be obtained without undue delay. Miller v. State, 208 Ga. App. 20, 430 S.E.2d 159 (1993).
Facts to which the absent witness would testify must appear in the showing for a continuance. The judge is entitled to this information in order that the judge can decide whether the evidence of the absent witness is material and admissible and not blindly accept the statement of defendant's counsel that the evidence of the witness was material and admissible. Mell v. State, 69 Ga. App. 302, 25 S.E.2d 142 (1943).
Fugitive witness.
- Witness who failed to appear for the witness's own trial was a fugitive. Accordingly, the codefendant could not have shown that the codefendant expected to be able to procure the witness's testimony at the next term. Roberts v. State, 208 Ga. App. 64, 430 S.E.2d 175 (1993).
Defendant's failure to establish whereabouts of a witness.
- When the defendant is unable to establish by any evidence that the defendant would ever be able to obtain the whereabouts of a witness, a trial judge does not abuse the judge's discretion in denying a motion for continuance. Lee v. State, 154 Ga. App. 562, 269 S.E.2d 65 (1980).
Requirement that movant allege how movant expects to procure witness' attendance.
- On the hearing of a motion for a continuance, based upon the absence of a material witness for the defense, when the court is authorized to find that the witness is beyond the jurisdiction of the court, that the witness's absence is not temporary, and that the court is powerless to force the witness to attend, although the movant states that the movant expects 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 has promised to attend, or that the movant has some other ground for the movant's expectation that the witness will attend. Wright v. State, 71 Ga. App. 346, 30 S.E.2d 839 (1944).
Evidence must be material, and not indefinite, or irrelevant. Griffin v. State, 26 Ga. 493 (1858); Wiggins v. State, 84 Ga. 488, 10 S.E. 1089 (1890).
Witness's testimony must not relate to evidence not specifically denied. Teal v. State, 17 Ga. App. 324, 86 S.E. 739 (1915).
Witness's testimony must not be cumulative of testimony of other witnesses who are present. Long v. State, 38 Ga. 491 (1868); Anderson v. State, 72 Ga. 98 (1883); Jones v. State, 125 Ga. 307, 54 S.E. 122 (1906); Blount v. State, 18 Ga. App. 204, 89 S.E. 78 (1916).
Failure to grant a continuance for testimony which is merely cumulative is not reversible error. Gallimore v. State, 166 Ga. App. 601, 305 S.E.2d 164 (1983).
If the missing testimony is cumulative and would not contradict the testimony of the state's witness as to any controlling point, it is not error to refuse a continuance. Grimes v. State, 168 Ga. App. 372, 308 S.E.2d 863 (1983).
Since the defendants presented no fewer than four witnesses who testified that the witnesses had heard the victim state that the victim did not know who had robbed the victim, the defendants' motion for continuance to obtain the presence of an absent witness who would have testified to the same effect or could have been impeached if the witness denied hearing such a statement was properly denied. Daniel v. State, 180 Ga. App. 179, 348 S.E.2d 720 (1986).
Defendant is not entitled to a continuance to obtain the presence of an absent witness when the expected testimony is merely impeaching and cumulative of other testimony in the case. Stafford v. State, 187 Ga. App. 401, 370 S.E.2d 646 (1988).
Practice and Procedure
Absence of sole witness for defense.
- Trial court abused the court's discretion by denying the defendant's request for a continuance pursuant to O.C.G.A. § 17-8-25 based on the absence of a subpoenaed witness who was the sole witness for the defense since defendant's counsel stated that after a mistrial had been declared in the first trial, "the witness was excused," since it could not be inferred from the brief statement made by counsel that when the witness was excused, the subpoena's effectiveness was necessarily terminated completely. Teat v. State, 181 Ga. App. 735, 353 S.E.2d 535 (1987).
Absence of witness for state.
- It was not an abuse of discretion for the trial court to grant a continuance to the state based on the absence of a police officer witness, who was not under subpoena but had been served with a notice, because the officer was prevented from testifying because the officer was placed on administrative leave. Hicks v. State, 221 Ga. App. 735, 472 S.E.2d 474 (1996).
Trial court did not err by excusing the jury after an ex parte conference with the state about a problem with the state's witnesses, because the jury had not been sworn, so no jeopardy attached, the state had shown that absent witnesses were material, the trial resumed one month later, and the defendant was not surprised by the witnesses at trial. Hoke v. State, 326 Ga. App. 71, 755 S.E.2d 876 (2014).
If the missing witness' testimony is solely impeaching and the judgment complained of is authorized by evidence other than the testimony sought to be impeached, it is not an abuse of discretion to refuse the continuance. Grimes v. State, 168 Ga. App. 372, 308 S.E.2d 863 (1983).
When the defendant failed to show that the desired witnesses' testimony could be procured by the next term of court, or what the substance of the witnesses' testimony would be, and because the missing witnesses' testimony was solely impeaching of a similar transaction rather than the offense charged, the trial court did not abuse the court's discretion in denying defendant's motion for a continuance; furthermore, the trial court fashioned an alternative procedure that made a report of any contested and offending statements available to defendant while limiting the state's ability to challenge it. Joiner v. State, 265 Ga. App. 395, 593 S.E.2d 936 (2004).
Materiality of testimony.
- In order to obtain a continuance for the execution of a writ of habeas corpus ad testificandum, the defendant does not have to state facts expected to be proved by an absent witness at trial when the witness' testimony would be material and the witness' whereabouts had only been discovered immediately prior to trial. Jackson v. State, 184 Ga. App. 133, 360 S.E.2d 907 (1987).
Motion properly denied when witness' availability unknown.
- When in response to a question from the court as to when a witness injured in an accident would be ready to testify, the defendant's counsel replied, "I don't know", the court did not err by denying the defendant's motion for a continuance. Nation v. State, 180 Ga. App. 460, 349 S.E.2d 479 (1986).
Errors in issuing subpoenas.
- When a witness was under a subpoena that did not specify a date for trial, but obligated the witness to be ready to testify at any time in the indefinite future, the trial court did not abuse the court's discretion in excusing the witness from the requirements of the subpoena and denying the defendant's motion for a continuance to secure the witness's attendance. Clark v. State, 225 Ga. App. 851, 485 S.E.2d 543 (1997).
Continuance should have been granted to secure witness's presence.
- In a prosecution for driving under the influence, the trial court erred in refusing the defendant's request for a continuance because of the absence of a subpoenaed witness since the witness was the only person who could testify as to the truth of an officer's testimony that the witness told the officer the defendant drove the truck. Arnold v. State, 228 Ga. App. 137, 491 S.E.2d 205 (1997).
Grounds for continuance not met.
- When the eight showings listed in O.C.G.A. § 17-8-25 for applications for continuance on the ground that a witness is absent were not met, the appellate court was unable to review the trial court's exercise of discretion on a motion for continuance. Garland v. State, 242 Ga. App. 19, 528 S.E.2d 550 (2000).
Trial court did not err in denying the defendant's motion for a continuance pursuant to O.C.G.A. § 17-8-25 of a pre-trial hearing on the defendant's motion in limine, seeking to exclude showup identification evidence of the victim and the victim's girlfriend, as their testimony was not material for the purposes of the pre-trial hearing; the eyewitnesses' trial testimony did not require a conclusion that the showup occurred during conditions causing a substantial likelihood of misidentification. Miller v. State, 266 Ga. App. 378, 597 S.E.2d 475 (2004).
At the time of the defendant's trial, the defendant's potential witnesses' appeals were pending and their counsel informed the defendant that, if called as witnesses, the witnesses would assert the witnesses' privilege against self-incrimination. Therefore, the defendant could not satisfy the requirement of showing that the witnesses would be available at the next term of court and, thus, the trial court did not abuse the court's discretion by denying the defendant's motion for a continuance under O.C.G.A. § 17-8-25. Pope v. State, 266 Ga. App. 658, 598 S.E.2d 48 (2004).
Trial court did not err in denying a motion for a continuance to allow the defendant to further investigate the possibility of an alibi defense because the defendant had made no attempt to show that there was an alibi or how additional time might be of benefit. Holloway v. State, 278 Ga. App. 709, 629 S.E.2d 447 (2006).
There was no abuse of discretion in a trial court's denial of a defendant's continuance motion under O.C.G.A. § 17-8-25 due to the defendant's inability to locate a homeless man who was a witness to a vehicle accident that formed the basis for the criminal charges against the defendant as the trial court provided the defendant with additional time to attempt to locate the witness, upon the defendant's failure to find the witness the trial court allowed the witness's prior testimony to be read into the record, and upon the location of the witness during the jury's deliberation, the same testimony was proffered from the live witness; further, the defendant had never subpoenaed the witness to appear at trial. Potts v. State, 296 Ga. App. 242, 674 S.E.2d 109 (2009).
Defendant did not meet the requirements for a continuance under O.C.G.A. § 17-8-25 due to the absence of the defendant's mother because the defendant did not subpoena the defendant's mother. Daniels v. State, 321 Ga. App. 748, 743 S.E.2d 440 (2013).
Trial court did not err in denying the defendant's request for a continuance based on a witness's absence as there was no evidence a subpoena for the witness existed, counsel conceded that counsel released the witness from the subpoena after the first day of trial, the defendant failed to establish the witness's place of residence or availability by the next term, and the defendant failed to provide the trial court with the facts the defendant expected the witness to prove. Janasik v. State, 323 Ga. App. 545, 746 S.E.2d 208 (2013).
Admission by state of facts expected to be proved by absent witnesses.
- When several of the requirements for the motion are absent and when the facts expected to be proved by the witnesses were admitted by the state, the trial judge was clearly right to overrule the motion for a continuance as to this ground. Golden v. State, 76 Ga. App. 851, 47 S.E.2d 513 (1948).
Admissions of defendant, in judicio, of facts inconsistent with those to which the absent witness would testify remove the ground for continuance because the witness's testimony would no longer be material. Fryer v. State, 138 Ga. App. 124, 225 S.E.2d 437 (1976).
It must appear that there are no other witnesses present by whom the same fact could be proved. Hill v. State, 91 Ga. 153, 16 S.E. 976 (1893).
Indefinite, inadmissible, and useless evidence.
- When it appears that the evidence would be indefinite, inadmissible, and useless, the court will not grant the continuance. Richter v. State, 4 Ga. App. 274, 61 S.E. 147 (1908).
Motion based on right to benefit of counsel.
- If a motion for continuance is based on the defendant's right to benefit of counsel, and cannot be construed as an application for continuance based on the absence of a material witness, the showing required by this section does not apply. Edwards v. State, 204 Ga. 384, 50 S.E.2d 10 (1948).
Testimony at former trial may be shown in counter-showing. Johnson v. State, 65 Ga. 94 (1880).
It may not be shown that the facts to which the witness would testify are not true. Brown v. State, 65 Ga. 332 (1880); Williams v. State, 69 Ga. 11 (1882).
Continuance to secure attendance of medical examiner.
- No abuse of discretion resulted from the grant of a continuance to the state based on the absence of the medical examiner, who was a material witness, because the defendant failed to show a show a violation of O.C.G.A. § 17-8-33. Moreover, in granting the prosecutor's motion for a continuance, the trial court noted that the court would do the same for a defendant in similar circumstances. Parker v. State, 282 Ga. 897, 655 S.E.2d 582 (2008).
Appellate Review
No interference with court's discretion unless abused.
- Determination of the trial judge in the exercise of the judge's discretion will not be controlled unless manifestly abused. Tyree v. State, 74 Ga. App. 229, 39 S.E.2d 441 (1946).
Motion to continue is addressed to the sound discretion of the trial judge, and the appellate court will not interfere unless it is clearly shown that the judge has abused the judge's discretion. Fryer v. State, 138 Ga. App. 124, 225 S.E.2d 437 (1976); Harris v. State, 142 Ga. App. 37, 234 S.E.2d 798 (1977); Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978).
Discretion abused when motion denied despite showing of all prerequisites.
- When a criminal defendant moves for a continuance based on a witness' absence, the trial court's discretion is not abused unless the defendant showed the court all of the prerequisites of this section. Watts v. State, 142 Ga. App. 857, 237 S.E.2d 231 (1977).
Motion denial is error.
- If the motion complies with all of the requirements of this section, and there is no counter-showing by the state, it is error to refuse to grant the continuance. Frost v. State, 91 Ga. App. 618, 86 S.E.2d 646 (1955).
No appellate review of denial of motion when requirements of section not met.
- If defendant's showing for continuance did not meet the requirements of this section, court's overruling of the defendant's motion for continuance was not error. Johnson v. State, 67 Ga. App. 294, 19 S.E.2d 922 (1942).
When it is clearly apparent that some of the requirements of this section have not been met, an appellate court will not review the trial judge's discretion in denying a motion for continuation based on this ground. Smith v. State, 120 Ga. App. 448, 170 S.E.2d 832 (1969).
Statutory requirements which must be met before appellate courts may review the trial judge's discretion in denying a motion for continuance due to the absence of a witness are enumerated in this section. Grant v. State, 147 Ga. App. 517, 249 S.E.2d 328 (1978).
Each of the requirements set forth in O.C.G.A. § 17-8-25 must be met before an appellate court may review the exercise of the trial court's discretion in denying a motion for continuance based upon the absence of a witness. Garrett v. State, 202 Ga. App. 463, 414 S.E.2d 693 (1992).
Each of the requirements of O.C.G.A. § 17-8-25 must be met before an appellate court may review a trial judge's discretion in denying a motion for continuance based upon an absent witness; these statutory requirements exist regardless of whether the state's conduct contributed to the release of witnesses. Vaughan v. State, 210 Ga. App. 381, 436 S.E.2d 19 (1993).
In a murder trial, because the defendant failed to produce evidence regarding what the state's witness would have testified to if the witness had been called back during the defense case, no error was shown. Morris v. State, 303 Ga. 192, 811 S.E.2d 321 (2018).
Denial of motion not abuse of discretion.
- When a motion for continuance does not comply with the requirements of O.C.G.A. § 17-8-25, no abuse of the court's discretion in refusing to continue the case because of the absence of witnesses is shown. Corbin v. State, 212 Ga. 231, 91 S.E.2d 764, cert. denied, 351 U.S. 987, 76 S. Ct. 1057, 100 L. Ed. 1501 (1956); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975); Atwater v. State, 233 Ga. App. 339, 503 S.E.2d 919 (1998).
If the moving party fails to make a proper showing of the requirements set forth in this section, the denial of a continuance motion cannot be said to be an abuse of discretion. Keller v. State, 128 Ga. App. 129, 195 S.E.2d 767 (1973); Harris v. State, 142 Ga. App. 37, 234 S.E.2d 798 (1977); Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978); Apgar v. State, 159 Ga. App. 752, 285 S.E.2d 89 (1981).
Denial of a motion for continuance is not an abuse of discretion when the state has stipulated as to the testimony of absent witnesses even though the truthfulness thereof is not conceded. Keller v. State, 128 Ga. App. 129, 195 S.E.2d 767 (1973).
Defendant was not entitled to a continuance after the state gave notice of the state's intent to present evidence that the crimes occurred in 1996, instead of 1995, because the dates in the indictment were not a material element of the crimes with which the defendant was charged and the defendant was not alleging an alibi defense; thus, the appeals court found that the trial court did not abuse the court's discretion in denying the defendant's motion seeking a continuance. Heath v. State, 269 Ga. App. 872, 605 S.E.2d 427 (2004).
Trial court did not abuse the court's discretion in denying the defendant's request for a continuance to secure the transporting officer's testimony because the defendant failed to meet several of the requirements delineated in O.C.G.A. § 17-8-25, including showing that the transporting officer resided within 100 miles of the place of trial and that the defendant could procure the officer's testimony at the next term of court. Lafavor v. State, 334 Ga. App. 125, 778 S.E.2d 377 (2015).
Grant of continuance proper.
- Trial court did not abuse the court's discretion as a matter of law in granting a continuance in the absence of a witness subpoena; further, a trial court had the authority to grant a continuance under the court's general power to serve the principles of justice. Carraway v. State, 263 Ga. App. 151, 587 S.E.2d 152 (2003).
Trial court did not abuse the court's discretion by allowing a continuance in order to allow the state to procure the attendance of a material witness with regard to a defendant's trial for trafficking marijuana and the fact that the continuance was granted ex parte did not change that result nor give the state an advantage over the defendant. Mora v. State, 292 Ga. App. 860, 666 S.E.2d 412 (2008).
RESEARCH REFERENCES
C.J.S.
- 17 C.J.S., Continuances, § 59.
ALR.
- Right to continuance to procure witness to alibi, 41 A.L.R. 1530.
Right of accused to continuance because of absence of witness who is fugitive from justice, 42 A.L.R.2d 1229.
Admissions to prevent continuance sought to secure testimony of absent witness in criminal case, 9 A.L.R.3d 1180.