Bush v. State, 48157
| Decision Date | 30 May 1973 |
| Docket Number | No. 1,No. 48157,48157,1 |
| Citation | 129 Ga.App. 160,199 S.E.2d 121 |
| Parties | Johnny F. BUSH v. The STATE |
| Court | Georgia Court of Appeals |
Tom Strickland, Athens, for appellant.
Ken Stula, Athens, for appellee.
Syllabus Opinion by the Court
1. Code § 38-1703 grants to the party requesting that witnesses be sequestered an absolute right, subject only to the sound discretion of the trial judge in permitting a witness to remain to advise the opposite party in the presentation of the case, or to secure the fair rights of the opposite party, or to avoid impairing the efficiency of the court, as where a deputy or other official is needed in the courtroom. Poultryland, Inc. v. Anderson, 200 Ga. 549, 562, 37 S.E.2d 785; Massey v. State, 220 Ga. 883, 893, 142 S.E.2d 832. The rule is absolute, and while the sheriff or his deputies may be such officers of court as, in the judge's discretion in handling the hearing, to be allowed to remain, a city police officer does not fall within such category. Head v. State, 111 Ga.App. 14, 140 S.E.2d 291. In this case, the court's discretion was not in fact invoked, the officer simply remaining, apparently on the ground that such right existed in him because he was the nominal prosecutor, his name appearing on the indictment. The only other witness for the state, his companion officer, testified first. There was no request for his presence as needed in order to advise in the presentation of the case, and there is no explanation of why, if his presence were needed, he could not have preceded his fellow officer. It was error over objection to allow such witness to testify.
2. The fifth enumeration of error concerns a portion of the charge which was held to be reversible error in Chambers v. State, 127 Ga.App . 196(5), 192 S.E.2d 916. Since the defendant is presumed innocent until his guilt is proved beyond a reasonable doubt, and the burden to do so remains on the state throughout the trial, it is error to instruct that where the state prima facie establishes the allegations of the indictment the jury is authorized to convict unless the defense, explanation or justification be established by the defendant by a preponderance of the evidence
3. The fourth enumeration of error shows no cause for reversal and the second is not passed upon as it is not likely to recur.
Judgment reversed.
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...of the evidence constitutes a ground for new trial. Massey v. State, 220 Ga. 883(5), 142 S.E.2d 832, supra; Bush v. State, 129 Ga.App. 160(1), 199 S.E.2d 121; Stuart v. State, 123 Ga.App. 311, 313, 180 S.E.2d 581, Judgment reversed for reasons stated in Divisions 2, 3 and 8, and remanded fo......
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...on appellant which the law does not impose. Chambers v. State, 127 Ga.App. 196, 200(5), 192 S.E.2d 916 (1972); Bush v. State, 129 Ga.App. 160, 161(2), 199 S.E.2d 121 (1973). The court did not retract the charge or call the jury's attention to the error in any other manner. Where a judge giv......
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...is invoked and supported by the record.' Head v. State, 111 Ga.App. 14, 140 S.E.2d 291. The exceptions are stated in Bush v. State, 129 Ga.App. 160(1), 199 S.E.2d 121 to be '(P)ermitting a witness to remain to advise the opposite party in the presentation of the case, or to secure the fair ......
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