It appears from the record that the accused was put on trial for his life on Saturday, the last day of a week’s court in Heard county, and lost it.
He excepts to being hung on several grounds, which are adverted to in the opinion of the majority. I shall refer to only one of them; for since my colleagues will not grant the plain-, tiff in error a new trial because they find no error to warrant the grant, and I alone can not give him one even though I think him entitled thereto by law, I content myself with the expression of my fixed opinion and conviction as to the ruling upon the request for a postponement, which is the first ground of complaint in the amended motion for a new trial.
It is a well-settled rule that where a continuance is erroneously; refused when as a matter of law it should have been granted, all subsequent proceedings in the trial are nugatory and void. From this rule it naturally follows that I may be considered as legally absent and not participating in the rulings of the majority upon the other grounds of the amended motion for a new trial.
*648From a somewhat extended judicial experience I am familiar with the general rule that to the effect that all motions for a continuance are addressed to the sound discretion of the trial judge; but for a long time the bench as well as the bar have recognized that, in the variety of circumstances which may vary indefinitely in the multitude of cases submitted for adjudication, this discretion may be abused, as I think it has been in the present capital case. And I say this with the utmost respect for the able and worthy trial' judge who presided in the trial court, and whose sterling qualities both as a man and as a judge I greatly admire.
The term “ discretion ” is affected by so many personal elements as well as surrounding extraneous circumstances that it can not be defined with absolute exactness, and I have found that attempts to define what is meant by legal discretion are extremely numerous. From observation and experience I have found that the personal equation is a large elementary factor, and that sometimes a desire to enforce a constitutional provision with relation to speedy trials is given undue consideration.
This defendant was tried at the same term of court at which he was indicted. He was unable to' employ a lawyer, and his counsel were appointed by the court on Friday after the return of the indictment on Tuesday. On account of other engagements in the court the appointed counsel had no opportunity even to talk to the defendant until after the adjournment of court on Friday, and when the case was called for trial on Saturday morning they had not had the opportunity to see any witness for the 'defendant.
A continuance of the case was not asked. The defendant asked for a postponement of the case from Saturday until Monday morning, to afford him time for the preparation of the case. Ever since the commission of the alleged offense the defendant had been confined in jail.
Some point is made in the opinion of the majority on the fact that after the court had given- counsel a short time to confer with witnesses summoned in behalf of the defendant' no additional showing was made by the defendant before entering on his trial, although the court had stated in substance that he would hear an additional showing for a postponement if counsel desired one after investigating their prospective testimony and interviewing the wit*649nesses. I see no force in this, nor that this circumstance affects in any way the merit of the showing as made and as it is to be found in the record. In overruling the motion for a postponement it is true that the judge did say that he would hear and consider an additional showing, and the ruling contained a most powerful negative pregnant that something new or additional would have to be presented or his ruling would not be changed. There is no inference prejudicial to the defendant arising from this offer of the court and the omission of defendant’s counsel to make another showing. The only inference that can be drawn is that the defendant had nothing further to present, for the reason that he had not found any material upon which to base any other ground of his motion for a postponement. If counsel had nothing more to add, a repetition of the showing already made would have been merely a useless consumption of time, if not an act in contempt of the court, which had already ruled that the showing as already made was insufficient.
As I have just said, even the most conscientious exercise of discretion is largely affected by the individual view of those charged with the duty of its exercise; and the fact that judges of the Supreme Court, in exercising the right of review, must necessarily have power to criticise and upset the rulings of lower courts does not shut my eyes to the fact that he may have been right and I may be wrong. However, in my opinion, supported as I think by many decisions of this court, my good brother of the trial bench misused, and thereby legally abused his discretion under the facts disclosed by the record now before me, and the fact that silence would mean assent in the views of my learned associates compels me to speak and dissent.
My views upon this subject have been fully expressed in Brooks v. State, 3 Ga. App. 458 (60 S. E. 211), Haines v. State, 8 Ga. App. 627 (70 S. E. 84), Patten v. State, 10 Ga. App. 20 (72 S. E. 521), and several other cases which were maturely considered'. Among the authorities in this court which formed the basis and created the opinion which I entertain are Jones v. State, 65 Ga. 506; Jackson v. State, 88 Ga. 784 (15 S. E. 677); McArver v. State, 114 Ga. 514 (40 S. E. 779); Reliford v. State, 140 Ga. 777 (79 S. E. 1128).
All through our decisions a distinction between a postpone*650ment asked at the first term, the term at which the indictment is found, and one requested where the indictment has been found at a previous term at which the request is made, is noted, and the reason for this distinction is plain. This difference, to which especial attention is called in the Broolcs case, supra, I think has been overlooked by my brethren.
I am authorized by Mr. Justice Atkinson to say that he concurs in this dissent.