Howard v. Echols

• Decision Date: 10 December 1923
• Docket Number: 14522.
• Citation: 120 S.E. 815,31 Ga.App. 420
• Parties: HOWARD v. ECHOLS.
• Court: Georgia Court of Appeals

120 S.E. 815

31 Ga.App. 420

HOWARD v. ECHOLS.

No. 14522.

Court of Appeals of Georgia, Second Division

December 10, 1923

Syllabus by the Court.

"Where witnesses have been separated at request of counsel a person not sworn and sequestered, but who has remained in the courtroom and heard the testimony in the case, is still competent to testify as a witness in the cause. If he has been purposely kept in the courtroom in disobedience of the orders of the court, with knowledge of the fact that he was to be used as a witness, the fact that he has heard the testimony goes to his credit, and the court may punish either the party who caused him to remain in the courtroom or the witness himself, or both, according to the circumstances, for contempt of court; but it is error to refuse to allow him to testify, unless the party offering him has expressly waived the right to use the witness.

A party's right to have the testimony of any witness, when material to the assertion of his rights, is, under the provisions of the evidence act of 1889 (Civil Code, § 5269; Civil Code of 1910, § 5858), unabridged, except by the exceptions therein specified, and is unaffected by section 5280 of the Civil Code (Penal Code, § 1017; Civil Code of 1910, § 5869), which relates to the sequestration of witnesses." Thomas v. State, 7 Ga.App. 615 (1) (2), 67 S.E. 707. See, also, Wallace v. Mize, 153 Ga. 374 (8), 388, 112 S.E. 724.

Under this ruling the court erred in refusing to allow a witness to give material evidence in behalf of the defendant, on the ground that the proffered witness had been in the courtroom in violation of an order for the sequestration of the witnesses.

One of the excerpts from the charge improperly assumed a disputed material fact in favor of the plaintiff, and, under the Civil Code 1910, § 4863, was error. The evidence authorized the verdict found for the plaintiff, but, for the errors noted in this and the preceding headnote, the defendant was entitled to the grant of a new trial.

Error from Superior Court, Forsyth County; D. W. Blair, Judge.

Action by Ella Echols against M. L. Howard. Judgment for plaintiff and defendant brings error. Reversed.

Clay & Blair and Morris & Hawkins, all of Marietta, for plaintiff in error.

H. L Patterson, of Cumming, for defendant in error.

BELL J.

This was an action for the alleged seduction of the plaintiff's daughter. A verdict was found for the plaintiff. The defendant's motion for a new trial was overruled, and he excepted.

1. In one of the grounds of the motion for a new trial it is complained that the court erred in refusing to allow a witness to testify in behalf of the defendant, on the ground that the proffered witness had remained in the courtroom in violation of an order for the sequestration of the witnesses. Some time before the filing of the action a warrant had been issued for the arrest of the defendant on the charge of seduction. The plaintiff, in rebuttal of the evidence of the defendant, testified:

"When I had him arrested he says he didn't ask for any settlement, and he certainly did. * * * He says, 'I will settle this matter if you will settle it right before it goes any further.' * * * Mr. Lewis Ledbetter was there and heard this."

The defendant had testified in reference to the alleged offer of settlement only upon cross-examination, denying the imputation in answer to questions propounded. He does not appear to have volunteered the issue. Thereafter and in due course the defendant proposed to prove by Lewis Ledbetter that this evidence of the plaintiff was untrue; that no such conversation took place between the plaintiff and the defendant at the time and place mentioned. Mr. Ledbetter had been called as a witness for the defendant, had taken the witness' oath, and had been excluded with the other witnesses under the rule of sequestration. The plaintiff objected to the testimony, on the ground that the witness had violated the rule and had been in the courtroom while the testimony of the plaintiff above quoted was being delivered. It appears that his presence in the courtroom at the particular time had been by the consent of the defendant's attorney, but not that it was the intention of the attorney to waive the privilege of introducing him as a witness. It is fair to say that the statement of the defendant's counsel would indicate also that there was no improper motive in consenting for the witness to be relieved of the rule, but this is immaterial to a decision. The testimony as given by the plaintiff--namely, that the defendant, on being...