Howard v. Echols

• Decision Date: 10 December 1923
• Docket Number: (No. 14522.)
• Citation: 31 Ga.App. 420,120 S.E. 815
• Court: Georgia Court of Appeals
• Parties: HOWARD . v. ECHOLS.

31 Ga.App. 420

120 S.E. 815

HOWARD .

v.ECHOLS.

(No. 14522.)

Court of Appeals of Georgia,

Division No. 2.

Dec. 10, 1923.

(Syllabus by the Court.)

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 arrested under the charge of seduction, sought a settlement—was relevant and material to be considered by the jury in passing upon the defendant's guilt. The offer of settlement, if made, had reference to the criminal charge, because the civil case had not then been filed. It was not, therefore, such an offer of compromise as should have been excluded. Under the decisions cited in the headnote, it was error to refuse to permit the witness to testify. Having heard the plaintiff's testimony would go to his credit, but would not render him incompetent, and his misconduct, whilenot operating to disqualify him, simply rendered him amenable to the court as for a contempt. The rule would be the same even if the defendant's attorney might have been subject to the same correction. Cunningham v. State, 97 Ga. 214 (1), 22 S. E. 954. It is true in the case at bar, as in that case, that the evidence rejected was only of an impeaching character, but we...