Head v. State
| Decision Date | 15 January 1965 |
| Docket Number | No. 2,No. 41130,41130,2 |
| Citation | 140 S.E.2d 291,111 Ga.App. 14 |
| Parties | Ruby Nell HEAD v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
A defendant invoking the sequestration rule of Code § 38-1703 has an absolute right to have the State's witnesses excluded from the courtroom and failure to exclude them is error unless an exception to the rule is invoked and supported by the record.
Defendant was convicted of selling beer without a license. Her amended motion for new trial was overruled and exception taken.
James I. Parker, Forrest C. Oates, Jr., Cedartown, for plaintiff in error.
Wayne W. Gammon, Sol., Cedartown, for defendant in error.
The special grounds of the motion complain of the refusal of the court to exclude two prosecuting police officers, both of the Polk County Police Department, when the defendant invoked the sequestration rule of Code § 38-1703.
The colloquy that appears in the motion for new trial is as follows:
The two officers remained in the courtroom and both testified after hearing the testimony of the witness who was the purchaser of the beer. In addition, one of the officers was recalled by the defendant for further cross examination, after which he was also directly examined.
As far as appears from the motion for new trial, the solicitor never indicated to the court that these witnesses were needed either to assist him in presenting the case or to prevent the defendant's escape. We view Montos v. State, 212 Ga. 764, 765(3), 95 S.E.2d 792, as controlling in this factual situation. In Montos the defendant moved to sequester the State's witnesses, two of whom were Georgia Bureau of Investigation agents. The solicitor contended the agents should be allowed to stay because they were 'officers' and were needed to guard against the defendant's possible escape. The court held, citing Poultryland, Inc. v. Anderson, 200 Ga. 549, 562, 37 S.E.2d 785, 793, that the Code confers upon the party making the sequestration request an absolute right to have all the opposition's witnesses excluded, 'subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case * * *'. It was held that since the solicitor had made no contention that he needed the agent's assistance in the conduct of the case the State could not rely on this exception to the sequestration rule. Accord: McGruder v. State, 213 Ga. 259, 267(9), 98 S.E.2d 564; Hunter v. State, 105 Ga.App. 564, 125 S.E.2d 85. See also Smith v. State, 215 Ga. 51, 53(5), 108...
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Childers v. State
...courtroom and failure to exclude them is error unless an exception to the rule 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 ad......
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Bush v. State, 48157
... ... 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 [129 Ga.App. 161] 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 ... ...
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Rozier v. State
...(although the litigant simply objected to the witness testifying as being incompetent), and granted a new trial. Also see Head v. State, 111 Ga.App. 14, 140 S.E.2d 291; Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785; Montos v. State, 212 Ga. 764, 95 S.E.2d In the case sub judice ......
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