
    27398.
    PATTON v. THE STATE.
    Decided April 4, 1939.
    TP. P. é IP. G. Mann, for plaintiff in error.
    
      J. H. Paschall, solicitor-general, contra.
   Guerry, J.

It did not appear from the motion for continuance in this case that the absent witness was a resident of the county at the time of the trial.. It did appear from the counter-showing that the witness had left the county immediately after the preceding term of the court, and although diligent search had been made for him he had not been seen or heard of since that time. Although the movant testified that he expected to have the witness or the benefit of his testimony at the next term of court, in view of the testimony of the sheriff as to his inaccessibility the court was authorized to disregard the showing made. Howard v. State, 7 Ga. App. 61, 63 (65 S. E. 1076); Howard v. State, 26 Ga. App. 431 (106 S. E. 732); Power v. State, 8 Ga. App. 408 (69 S. E. 315); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814). Under the facts the judge did not abuse his discretion in overruling the motion for continuance.

The sustaining of a special demurrer to an indictment, as to statements contained therein which do not constitute a crime and which are surplusage, does not void the indictment as to the part remaining which charges a crime, and does not constitute an amendment of the indictment. See Brooks v. State, 47 Ga. App. 226 (2) (170 S. E. 406); s. c. 178 Ga. 784, 787 (17 S. E. 6). The general demurrer was properly overruled.

The evidence supported the verdict, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.  