Hewell v. State
| Decision Date | 09 September 1976 |
| Docket Number | No. 52413,No. 2,52413,2 |
| Citation | 229 S.E.2d 92,139 Ga.App. 622 |
| Parties | Ricky HEWELL v. The STATE |
| Court | Georgia Court of Appeals |
Jack H. Affleck, Robert D. Peckham, Athens, for appellant.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., Athens, for appellee.
Following the reversal of the judgment (conviction and sentence) in the first trial of this burglary case (Hewell v. State, 136 Ga.App. 420, 221 S.E.2d 219), defendant was again tried, convicted and sentenced to serve a term of 10 years, consecutively to another sentence in the Superior Court of Clarke County. Defendant appeals. Held:
1. The first trial of this case was set aside (see Hewell v. State, supra) because a missing witness (the victim) was not proven to be inaccessible, and it was therefore error to allow the use of previously transcribed testimony against the defendant. Again the witness was found to be inaccessible and again the court allowed the reading of the transcript of the testimony of the inaccessible witness. Error is again enumerated that the State failed to show inaccessibility in violation of the defendant's constitutional right of confrontation of the witness.
The State offered testimony of an investigator that the missing witness had been located in Rising Sun, Indiana; that he had been contacted and had advised that even though the State would pay his expenses to come back to Georgia to testify, he was in the kennel club business and had no one to run it and he 'didn't wish to return to Clarke County.' Testimony was also offered showing that a subpoena had been mailed to him a week before the trial; a telephone call had been placed to him a week before the trial and the week of the trial, but the investigator had not received any reply. The court allowed the missing witness' transcribed testimony to be read in evidence. Since the question of inadmissibility of this testimony from a former hearing under Code § 38-314 is a matter within the sound discretion of the trial court, the allowance of same will not be overturned unless a manifest abuse of discretion is made to appear. Tanner v. State, 213 Ga. 820, 821, 102 S.E.2d 176; Sheppard v. State, 167 Ga. 326, 145 S.E. 654; Burns v. State, 191 Ga. 60(7), 11 S.E.2d 350. Proof that the witness had moved from the state and had refused to return and testify was sufficiently shown to allow the trial court to consider him as being inaccessible. Smith v. State, 147 Ga. 689(1), 95 S.E. 281; Hunter v. State, 147 Ga. 823(1), 95 S.E. 668; Estill v. Citizens & Southern Bank, 153 Ga. 618(6), 113 S.E. 552. Even though the testimony showed the witness had refused to return to Georgia some 45 days prior to the trial, and no evidence was shown as to whether or not he had received the copy of the subpoena by mail or the telephone calls to him, none of this testimony is sufficient to show the court abused its discretion in allowing the previous testimony of this witness. There is no merit in this complaint.
2. Even though the evidence as to aggravation which the State introduced (certified copies of prior convictions) had been served upon the defendant prior to the first trial, it was proper to allow same in evidence under Code Ann. § 27-2503 (Ga.L.1974, pp. 352, 357) which merely requires...
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