Ivey v. State

• Decision Date: 12 October 1908
• Docket Number: (No. 1,231.)
• Citation: 62 S.E. 565,4 Ga.App. 828
• Parties: IVEY. v. STATE.
• Court: Georgia Court of Appeals

62 S.E. 565

4 Ga.App. 828

IVEY.

v.STATE.

(No. 1, 231.)

Court of Appeals of Georgia.

Oct. 12, 1908.

1. Witnesses— Subpœna—Requisites—Nonresident Witnesses—Countersigning by Judge or Solicitor General—Necessity.

An ordinary subpoena, signed by the clerk and issued on behalf of the defendant in a criminal case, is sufficient to compel the attendance of a witness from any portion of the state. It is not required that subpoenas for the defendant's witnesses residing out of the county of the prosecution shall be countersigned either by the presiding judge or the solicitor general.

2. Jury—Incomplete Panal— Waiver.

If a panel of less than 48 jurors is put upon the prisoner, and he does not challenge the array, but proceeds with the selection of the jury he cannot thereafter, as a matter of right, demand the filling of the panel.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Jury, § 513.]

3. Criminal Law — Evidence — Confession Made Pending Illegal Arrest.

A voluntary confession or incriminatory statement is not inadmissible merely because it was made pending an illegal arrest.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Appeal and Error, § 1170.]

(Syllabus by the Court.)

Error from Superior Court, Warren County; J. N. Worley, Judge.

Tutt Ivey was convicted of knowingly uttering a forged check, and he brings error. Reversed.

M. L. Felts, for plaintiff in error.

David W. Meadow, Sol. Gen., and E. P. Davis, for the State.

POWELL, J. Tutt Ivey was prosecuted for knowingly uttering a forged check. He presented at the Citizens' Bank of Warren-ton a forged check, purporting to be signed by one of its customers, payable to Will Smith, and indorsed in blank in the name of Will Smith. There was evidence from which the jury might have found that the defendant himself committed the forgery, as well as uttered it; but he set up that he got the check innocently from Will Smith at Macon, Ga., in the presence of John Ivey, and that Will Smith had gone on to Tampa, Fla., but John Ivey was still at Macon. He made a motion for continuance on the ground that he had placed a subpoena in the hands of the sheriff of Warren county for John Ivey, and that by reason of the fact that the sheriff had not served the subpoena the witness was absent. It appears from the note of the presiding judge that this motion for continuance was overruled on the ground that the subpœna was not countersigned by the judge or by the solicitor general. If the judge had placed the exercise of his discretion on the ground that the showing was otherwise deficient, we might not reverse his judgment; but the reason given for refusing to grant the continuance is entirely insufficient. There is no law requiring the signature of the judge or of the solicitor general to a subpoena for the attendance of a nonresident witness for the defendant. Pen. Code 1895, § 1114, provides that "no subpoena for a nonresident witness for the state shall be issued, unless signed by the clerk of the court and the solicitor general of the circuit." As to nonresident witnesses for the state this is mandatory. Harris v. Early County, 96 Ga. 186, 22 S. E. 704. Pen. Code 1895, §§ 1115 to 1117, inclusive, relate to the method of computing and collecting the fees of nonresident witnesses subpœnaed on behalf of the state. Section 1118 is as follows: "The foregoing provisions of this article shall apply to the defendant's witnesses when, in the discretion of the presiding judge, the end of justice may demand it."

An examination of the statutes and the amendments to statutes on which these code sections are based will disclose that the words "foregoing provisions, " found in section 1118, apply only to the three sections immediately preceding, and not also to section 1114 (compare the act approved August 1, 1879 [Laws Ga. 1878-79, p. 66], with the act approved October 8, 1879 [Laws Ga. 1878-79, p. 47]); that is to say, it simply provides that the judge may require the fees of nonresident witnesses for the defendant to be paid by the county at the rate and in the manner prescribed as to state's witnesses. This is in general done by an order, passed by the judge after the witness has attended and he has satisfied himself from an investigation into the facts that there has been no collusion between the witness and the party to have the former subpoenaed for the purpose of making a claim for fees, and that the defendant is unable to pay the fees (or under the particular circumstances should not be put to the injustice or hardship of doing so), and that the substantial justice of the whole situation requires that the county, and not the witness or the defendant, should pay the amount of expense thus incurred. In some cases, for instance, where the judge has information in advance that the witness is too poor to pay his expenses in coming to the trial and his testimony is important, it is expedient and altogether legal for the court to order that the witness be subpoenaed for the defendant at the expense of the county. Primarily, of course, the defendant is chargeable with the fees of his own witnesses. He is not chargeable, however, unless he is convicted. Howell v. Blackwell, 7 Ga. 443; Roberts v. State, 72 Ga. 677; Const. art. 1, § 1, par. 10 (Civ. Code 1895, § 5707). It must be remembered that the Constitution guarantees that every person charged with an offense against the laws of this state "shall have compulsory process to obtain the testimony of his own witnesses." Civ. Code 1895, § 5702. The...