Stuart v. The State., 123 Ga. App. 311, 180 S.E.2d 581 (1971)
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Judgment reversed. Quillian, J., concurs. Jordan, P. J., concurs in the judgment.
Summary
Judgment reversed. Quillian, J., concurs. Jordan, P. J., concurs in the judgment.
Text
H. Eugene Brown, District Attorney, for appellee.James R. Venable, Margaret Hopkins, James Studdard, H. G. McBrayer, Jr., for appellant.
The defendant was indicted, along with several other persons, for murder. He was thereafter tried and convicted and sentenced to serve 14 years' imprisonment for voluntary manslaughter. The appeal is from this final judgment, as well as from the order overruling and denying his motion for new trial, as amended. Twenty-four grounds of error are enumerated. However, no oral argument was made, and counsel confines his written argument to (1) the sufficiency of the evidence to authorize a conviction; (2) an alleged abuse of discretion by the trial judge in failing to grant defense counsel's motion for sequestration of witnesses and permitting a State's witness to remain in the courtroom for the purpose of assisting the prosecuting attorney, and in not requiring this witness to give his testimony prior to the examination of other witnesses; (3) the denial of defendant's motion for a mistrial when the prosecuting attorney made extremely improper and prejudicial remarks in the presence of the jury, and although the court instructed the jury to disregard the comment, yet counsel was not reprimanded for making it; (4) the instruction to the jury on voluntary manslaughter in the heat of passion because there was no evidence in the case to justify such charge; (5) failure to instruct the jury that in determining the question of voluntary manslaughter where conspiracy had previously been charged, the question of conspiracy should not be considered; and (6) failure to instruct the jury on the issue of credibility of a witness who had been allowed to remain in the courtroom and hear the testimony of other witnesses for the State before giving his own testimony. Counsel for appellant advised that a supplemental brief would be filed, arguing all of the other errors enumerated, but none has been filed. The only errors that can be considered, therefore, are those set forth above. Held:
1. It is possible to violate Code 38-1703 as to sequestration of witnesses in more than one way. First, the trial judge may abuse his discretion in applying said statute, by permitting these witnesses to remain in the courtroom. See Pippins v. State,
The court shall take proper care to administer the law of sequestration, so far as practicable and convenient. Any mere irregularity shall not exclude the witness. It is proper that such witness who is allowed to remain in the courtroom should be first examined, out of the hearing of the other witnesses, unless there be reasons for not following this rule. The particular circumstances of each case shall control, under the discretion of the court. See Tift v. Jones,
2. During the trial the prosecuting attorney asked the judge if he might ask counsel for the defendant if he was going to have "the other co-defendant testify he said he rested?" The judge replied: "You don't have the right to make that inquiry." Whereupon a motion for mistrial was made and denied after considerable discussion and argument in which the judge decided he did not feel it was prejudicial to the extent of depriving the defendant of a fair and impartial trial. When the jury returned, the judge made no remarks to them but after a few moments instructed them that the remarks of the prosecuting attorney a few moments before were improper and asked the jury to totally disregard this and dismiss it from their minds. The judge had promptly instructed counsel his remark was improper. Further, having a second thought on the matter he instructed the jury it was improper and to totally disregard it. It thus appears the judge took proper steps to correct the situation. It cannot be said he did not reprimand counsel although he may not have chastised him as defense counsel would have desired. The judge did not err in denying the motion for mistrial. See Johnson v. State,
4. The evidence here was sufficient to authorize a charge on the law of conspiracy. The mere fact that there was other evidence which would authorize a charge on voluntary manslaughter so as to authorize the jury to reduce the charge to voluntary manslaughter occurring in the heat of passion, thereby excluding any question of deliberation or malice, would not require a charge to the jury that the question of conspiracy should no longer be considered in determining the question of voluntary manslaughter. This is particularly true when there was no written request to so charge. Since there was no written request, we find no harmful error in the charge as given here. The case of Grier v. State,
5. While the witnesses were under the rule here, Detective Burgess was allowed to remain in the courtroom to assist the prosecuting attorney. Thereafter he was used as a witness (which is the subject matter of Headnote 1 of this opinion) and heard other testimony before testifying himself. This would not require a special charge by the court without request as to the credibility of this witness. This witness did not disobey an order of the court and was not subject to a citation for contempt. We find nothing in McWhorter v. State,
6. The evidence here authorized the verdict. There is no error in any of the complaints averring that the evidence was insufficient to support the same. However, for the reasons stated in Headnote 1, a new trial is necessary.
ON MOTION FOR REHEARING.
On motion for rehearing, State's counsel urges that defendant's motion as to the witnesses was too general to be treated as a motion to sequester. The trial judge did not experience any difficulty in so interpreting the motion, because he used this language: "All right, the rule of sequestration has been asked for for both sides, which means all witnesses must remain outside the courtroom during the progress of the trial . . ." (Emphasis supplied.)
Next, State's counsel urges that defendant waived the right to complain by failing to object to the witness testifying when called to the stand. There was nothing that could have been done to prevent the witness from testifying. A party has the absolute right to place his witnesses on the stand even in cases when they deliberately violate the rule of sequestration. Howard v. Echols,
It is quite true that the trial judge has broad discretion in such matters, but no facts appear in the record on which he could premise his discretion, and more important, the record shows he did not exercise discretion in his rulings.
State's counsel did not request the presence of the witness so the witness might aid in the prosecution; he merely stated that "I would like to have permission to have Detective Burgess sit at the table. He helped to conduct the investigation, and I'd like to call him as a witness." (Emphasis supplied.) Such language suggests that the only reason for wanting the witness to sit at the table was so he would be readily available when called upon to testify.
Then when defendant's counsel moved to require the witness to be first sworn if the trial judge were going to permit him to remain in the courtroom (Tift v. Jones,
1971
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This document cites
- Supreme Court of Georgia - SANDERS v. AMERICAN LIBERTY INSURANCE COMPANY., 225 Ga. 796, 171 S.E.2.d 539 (1969)
- Supreme Court of Georgia - PIPPINS v. THE STATE., 224 Ga. 462, 162 S.E.2.d 338 (1968)
- Supreme Court of Georgia - DILL v. THE STATE., 222 Ga. 793, 152 S.E.2.d 741 (1966)
- Supreme Court of Georgia - HALL v. HALL., 220 Ga. 677, 141 S.E.2.d 400
- Supreme Court of Georgia - MASSEY v. THE STATE., 220 Ga. 883, 142 S.E.2.d 832 (1965)
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