Harper v. State
| Citation | 63 S.E. 339,131 Ga. 771 |
| Parties | HARPER v. STATE. |
| Decision Date | 13 January 1909 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
Where the only eyewitness to a homicide testifies before the grand jury while such jury, under an indictment against the slayer is making an investigation of the facts connected with the homicide, which indictment is afterwards returned as true the provisions of the Constitution of the United States (amendments, art. 6) providing that the accused shall be confronted with the witnesses against him are not violated because the defendant is not present when the witness is delivering such testimony before the grand jury, or because the state does not have such witness testify before the jury trying such defendant under the indictment.
[Ed Note.-For other cases, see Grand Jury, Dec. Dig. § 35. [*]]
It is not ground for a new trial that the state did not introduce, upon the trial of one indicted for murder, the only eyewitness to the homicide; and this is true, although at the beginning of such trial the Solicitor General stated to the jury "that he would by an eyewitness produce sufficient facts to hang 40 men," and though the defendant knew that a certain witness subpoenaed for the state was the only eyewitness to the homicide, and expected the state to introduce him as a witness upon the trial.
[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 918. [*]]
Upon the hearing of a motion for a new trial, the following facts appeared: The only eyewitness to the homicide was subpoenaed by the state and by the defendant, and was present at the trial of the defendant for murder. This witness testified before the grand jury which found the indictment under which the defendant was tried, and the Solicitor General, at the beginning of the trial, stated he would produce testimony of an eyewitness to the homicide sufficient to hang 40 men; but such witness was not introduced upon the trial. Defendant knew at the trial that he was the only eyewitness to the homicide. The witness told defendant's counsel he was a witness for the state, and refused to make before the trial any statement to such counsel concerning the facts connected with the homicide; but, after the trial, he informed defendant's counsel of facts he knew which were material to the defense. Held, that the judgment of the court below, in refusing a new trial on the ground of newly discovered evidence, will not be disturbed.
[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 939. [*]]
No error was committed by the court upon the hearing of the motion, requiring a reversal of the judgment of the court below.
Error from Superior Court, Murray County; A. W. Fite, Judge.
John Harper was convicted of murder, and he brings error. Affirmed.
W. W. Sampler, Samuel D. Hewlitt, and Griffin & Attaway, for plaintiff in error.
Samuel P. Maddox, Sol. Gen., and John C. Hart, Atty. Gen., for defendant in error.
The defendant was convicted of murder without recommendation; and the judgment of the court overruling his motion for a new trial was affirmed by this court. Harper v. State, 129 Ga. 770, 59 S.E. 792. He made an extraordinary motion for a new trial, and to the judgment of the court overruling the same he filed exceptions, bringing the case here for review. For a full report of the facts of the case, see the decision above referred to. The defendant was under indictment for murder in Fannin superior court; and while in Murray county, and while Ben Keith, the sheriff of that county, was undertaking to arrest the defendant, the sheriff was shot and killed by the defendant. It appears that the only eyewitness to the killing was Carl Foster. One of the contentions of the state was that the defendant was an escaped felon, and killed the deceased to prevent him from arresting him. The question now before this court is whether the court below committed error upon the hearing of the extraordinary motion for a new trial, and in overruling the same.
1. One of the grounds of this motion is as follows: The meaning of the provision of the Constitution referred to, providing that the accused shall be "confronted with the witnesses against him," is that testimony of no witness shall be used against a defendant upon his trial unless the defendant is confronted with such witness while he is delivering such testimony. It does not mean that the defendant is entitled to be confronted with the witness when he is delivering testimony before the grand jury, which must find an indictment before the defendant can be put upon trial. The defendant was not put upon trial before the grand jury. Nor does this provision of the Constitution mean that any witness who testifies before the grand jury, and upon whose testimony an indictment is found, must be introduced as a witness upon the trial of the defendant for the offense for which he is indicted. The meaning of this provision of the Constitution is that the testimony of no witness against a defendant shall be used upon his trial, in the shape of an affidavit, or answers to interrogatories, or in any other way, where the defendant is not confronted by the witness while such testimony is being delivered by him. This provision necessarily requires that the witness and the defendant both be personally present when the testimony of the witness is being delivered against him; but there is no requirement that every witness who delivers testimony before the grand jury which finds an indictment against a party shall be introduced upon the trial of such party for the offense for which he is indicted.
2. Another ground of the motion was that the defendant was denied a fair and impartial trial because the Solicitor General failed and refused to introduce before the jury upon the trial of the case Carl Foster, the only eyewitness to the killing. We fail to see wherein the defendant was denied a fair and impartial trial simply because the state did not introduce the testimony of the only eyewitness to the killing. Such witness might be untruthful and corrupt. He might be willing to testify to anything which would acquit the defendant. It would be an unfair trial for the state if the burden were upon it in all instances to introduce as a witness upon the trial the only eyewitness to the homicide. If the testimony such witness would give would be favorable to the state, the defendant cannot be harmed by its absence, which would make it more difficult for the state to secure a conviction. On the other hand, if the witness would testify in aid of the defendant, the state was under no duty to produce testimony unfavorable to it, and the defendant had the right and should have availed himself of the privilege of introducing and having the witness testify.
Another ground of the motion for a new trial is that the defendant was misled by a statement made by the Solicitor General in his opening argument "that he would by an eyewitness produce sufficient facts to hang 40 men," and because the eyewitness was not introduced and allowed to testify. The defendant alleges that he knew that Carl Foster was the only eyewitness, and believed that he would be introduced by the state, and was afraid to place said witness up for the defense. He believed he would be introduced as a witness by the state in rebuttal. This is certainly no ground for a new trial. After the state closed its testimony without introducing Carl Foster, the defendant himself then had an opportunity to offer such witness.
3. Another ground of the motion was alleged newly discovered evidence contained in the affidavit of Carl Foster. Defendant in his motion made substantially the following allegations: He did not know nor did his counsel know of this testimony at the trial, nor could they secure the same thereat.
His attorney, Chas. H. Griffin, prior to the trial, requested Foster to give a statement in regard to the killing. Foster refused to do so, stating that he had been advised that it was best to keep his mouth shut. Foster stated he was a witness for the state, and would testify against movant. The state closed its testimony without introducing Foster. Movant believed he would be introduced in rebuttal. He was afraid to introduce the witness, knowing that he was a state's witness, and on account of the Solicitor General's remark in his opening statement to the jury that he would introduce an eyewitness who would testify to facts sufficient to hang 40 men, and because Foster had told defendant's attorney that he would testify for the state, and because defendant knew the witness had been introduced before the grand jury which found the indictment. Some time after the trial defendant's attorney, Griffin, located Foster, and finally got him to give him the statement contained in Foster's affidavit of the occurrence as he knew it and as he had presented it to the Solicitor General prior to the trial. If Foster had been allowed to testify and had not been intimidated, defendant would not have been convicted. The defendant was convicted on the idea that he knew Ben Keith was sheriff and wanted to arrest him for a felony, when, as a matter of fact, he did not know these facts, as shown by the affidavit of Foster. If movant had known of this testimony he would have used Foster as a witness upon the trial. He was...
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