Turner v. State

By the Court.

Benning J.

delivering the opinion.

Continuances, being within the discretion of the Court, the onus is upon the party objecting to a continuance, to show, that, in granting the continuance, the Court abused its discretion. Presumption will be in favor of the continuance.

In this case, the Solicitor General, said “ that the State was not ready for trial.” No question was asked him. There may have been a good reason why the State was not ready; and a reason within the knowledge of the Court. It is, therefore, to be presumed that there was, — especially, as the Solicitor General was a public officer, on whom is imposed the duty of being diligent in preparing such cases for trial; and it is prima facia to be presumed of every public officer, that he does his duty.

Besides, the Solicitor General has the unlimited power of “not. prossing” the bill of indictment, and then of preferring it again. The exercise of such a power, is but a round-about way of continuing the case. Hence, in some circuits, perhaps, in many, the Solicitor General is allowed to continue the case, at his mere pleasure.

These are reasons why this Court would not interfere with this continuance, if it could. But it could not, if it would. The judgment granting a continuance, is in its own nature one which, even if wrong, is beyond this Court’s power of correction. And this Court, is only for the correction of errors.

This Court has, therefore, come to the conclusion, that it ought to dismiss writs of errors founded on judgments granting continuances, or, on any other judgments, which, in their own nature, are such that, if erroneous, they are beyond the reach of this Court’s corrective power, this conclusion it will execute as soon as the case in which it was arrived at,, shall have been published. That is the case of Wimberly vs. Collier, decided at Macon January 1858.

A judgment refusing a continuance, stands upon a different footing.

Judgment affirmed.