Lingerfelt v. State, 28240
| Decision Date | 08 November 1973 |
| Docket Number | No. 28240,28240 |
| Parties | James LINGERFELT v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
While under limited circumstances evidence adduced at a prior hearing may be read to the jury in a criminal case (Park v. State, 225 Ga. 618, 170 S.E.2d 687), yet where as in the present case the prior hearing was a commitment hearing of a co-indictee and neither the defendant nor his counsel was present, the admission of such evidence denied the defendant the right of a thorough and sifting cross examination.
Maylon K. London, Martin W. Welch, Cleveland, for appellant.
C. B. Holcomb, Dist. Atty., B. B. Robertson, Canton, George D. Lawrence, Eatonton, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.
The appellant, James Lingerfelt, and three others (Charles Bennett, Marcus Ratledge and Herbert Dean Smith) were indicted for the murders of William (Bill) Cantrell and Larry Lee Mulky, who were law enforcement officers in Forsyth County, Georgia. The conviction of Herbert Dean Smith was set aside and a new trial granted by this court (Smith v. State, 230 Ga. 876, 199 S.E.2d 793), because of a lack of evidence to support the verdict.
1. The complaint that the trial court erred, after granting a motion for severance, in ordering the defendant tried upon two indictments for the two alleged murders which arose out of the same transaction is without merit. The defendant here was tried separately from the other defendants.
The motions for severance related to a separate trial for the defendant on the indictments so that he would not be tried jointly with the other three defendants. Under the Act of 1968 (Ga.L.1968, pp. 1249, 1267; Code Ann. § 26-506), separate trials may be had only when it is in the interest of justice to provide separate trials under indictments charging separate crimes arising out of the same transaction. Compare Stull v. State, 230 Ga. 99(5), 196 S.E.2d 7; Loftin v. State, 230 Ga. 92(1), 195 S.E.2d 402.
2. The enumerations of error which complain of the trial of the defendant immediately after the trial of a co-indictee presents nothing for decision by this court where such question was not raised prior to the defendant's conviction.
3. During the trial of the defendant, a co-indictee was called as a witness by the state. The witness refused to answer most of the questions asked him because of possible self-incrimination. Later during the trial, the state was permitted to read into evidence testimony given by such witness in a committal hearing of a third co-indictee where neither the defendant here nor his counsel was present. The district attorney relied upon the decision of this court in Park v. State, 225 Ga. 618, 170 S.E.2d 687, and the authorities there cited as authority for the reading of such questions and answers.
In the Park case the testimony was originally adduced upon a former trial of the same defendant for the same offense wherein the defendant was present and the witness was thoroughly cross examined by the same defendant's counsel. While the witnesses in Park were co-indictees and shown to be co-conspirators, the admission of their prior testimony was not based upon such ground. The testimony objected to in the case sub judice was originally adduced in the committal hearing of a co-indictee of both the defendant and the witness. The defendant was not present nor was his counsel present to cross examine the witness at the time the testimony read in the record was originally given.
No question as to use of such testimony for impeachment purposes is presented for the testimony was read, not to discredit the testimony given at this trial, but, as original evidence of the facts contained therein.
The testimony of this witness on the former hearing did not come within the ambit of Park v. State, supra, and although the witness was present, his refusal to testify precluded the defendant's counsel from conducting a thorough and sifting cross examination. The evidence relating to such co-indictee's participation in the murder conspiracy was basically the same here as it was in Smith v. State, 230 Ga. 876, 199 S.E.2d 793, where it...
To continue reading
Request your trial
-
McCorquodale v. State
...229 Ga. 617, 193 S.E.2d 814; Allen v. State, 231 Ga. 17, 200 S.E.2d 106; Smith v. State, 230 Ga. 876, 199 S.E.2d 793; Lingerfelt v. State, 231 Ga. 354, 201 S.E.2d 445; Echols v. State, 231 Ga. 633, 203 S.E.2d 165; Emmett v. State, 232 Ga. 110, 205 S.E.2d ...
-
House v. State
...231 Ga. 17, 200 S.E.2d 106; Smith v. State, 230 Ga. 876, 199 S.E.2d 793; Johnson v. State, 231 Ga. 138, 200 S.E.2d 734; Lingerfelt v. State, 231 Ga. 354, 201 S.E.2d 445. GUNTER, Justice I dissent from the judgment of the court on the ground that the present Georgia statutes authorizing the ......
-
Floyd v. State
...231 Ga. 17, 200 S.E.2d 106; Smith v. State, 230 Ga. 876, 199 S.E.2d 793; Johnson v. State, 231 Ga. 138, 200 S.E.2d 734; Lingerfelt v. State, 231 Ga. 354, 201 S.E.2d 445; Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 ...
-
Horne v. State
...Amendment grounds. Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975) ("Lingerfelt II"). See also Lingerfelt v. State, 231 Ga. 354(3), 201 S.E.2d 445 (1973) ("Lingerfelt I"). In Lawrence v. State, 257 Ga. 423(3), 360 S.E.2d 716 (1987), the Court reached the same result with regard to a......