Crosby v. State
| Decision Date | 13 April 1954 |
| Docket Number | No. 2,No. 35115,35115,2 |
| Citation | 82 S.E.2d 38,90 Ga.App. 63 |
| Parties | CROSBY v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While as a general rule, applicable in this State, a law enforcement officer will not, when under cross-examination as a witness for the State upon the trial of a criminal case, be required to divulge the identity of a mere informer, the defendant is, nevertheless, for the reasons set forth in the body of this opinion entitled by cross-examination of such witness to determine the identity of a decoy who, at the instance of the officer, secures the actual facts upon which the prosecution is based.
Bill Crosby was tried and convicted in the Superior Court of Appling County on an indictment charging him with the illegal sale of whisky. He filed a motion for new trial on the general grounds which was later amended by adding one special ground. The overruling of this motion is assigned as error.
Milton C. Grainger, Jack W. Ballenger, Baxley, for plaintiff in error.
W. Glenn Thomas, Sol. Gen., Jesup, for defendant in error.
The defendant was convicted upon the testimony of an agent of the State Department of Revenue, who testified that he was sent to communicate with the Sheriff of Appling County; that the sheriff instructed him to go with a man pointed out to him but whose identity he never learned, to buy whisky from the defendant and that he did so, and the defendant sold him nontax-paid whisky. The sheriff corroborated this testimony by a statement that he had requested an agent of the revenue department, and sent him out with another person, whose name he knew but refused to divulge unless ordered to do so by the court. This unknown person was, according to the agent's testimony, present and aided in the transaction of purchasing the liquor. According to the sheriff's testimony, he was sent with the witness for that purpose. The defendant, who, in his unsworn statement, contended that no such transaction had ever taken place, assigns error on the refusal of the court to require the sheriff to divulge the name of the person who had allegedly accompanied the revenue department agent to his home and assisted in purchasing the whisky.
It is well established that, 'under statutes providing that a public officer cannot be examined as to communications made to him in official confidence when public interests would suffer by the disclosure, the courts generally have excluded communications by informers to public officials.' 58 Am.Jur. Witnesses, 300, § 534. This is the rule in Georgia. Code, § 38-1102; Anderson v. State, 72 Ga.App. 487(4), 34 S.E.2d 110. There is, however, a vast difference between an informer (usually a citizen who communicates to public authorities suspected infractions of penal laws) and a decoy (usually a person employed by law-enforcement agencies to obtain evidence upon which prosecutions are based). In at least two Federal cases it has been held reversible error to refuse to permit dislosure of the name of the decoy who actually procured the evidence upon which the indictment was based, there being no grave apprehension that the security of the body politic would be threatened by such disclosure. In Sorrentino v. U. S., 9 Cir., 163 F.2d 627,...
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...the older cases should be overruled. The more recent cases are those cited in Headnote 1, above. The older cases are Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38; Roddenberry v. State, 90 Ga.App. 66, 82 S.E.2d 40, and Smallwood v. State, 95 Ga.App. 766(1), 98 S.E.2d 602. In Butler v. State,......
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... ... The privilege was first judicially recognized in Georgia in Anderson v. State, 72 Ga.App. 487, 493, 34 S.E.2d 110 (1945), where cross-examination as to the identity of an informer was held properly denied. Subsequently, Crosby v. State, 90 Ga.App ... 63, 64, 82 S.E.2d 38 (1954), distinguished between a 'decoy'-a person used to obtain evidence (the informer-participant) or to establish facts (the informer-witness) upon which to base a prosecution and an informer (the mere tipster)-one who provides information about ... ...
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