Jackson v. State
| Decision Date | 29 September 1971 |
| Docket Number | No. 2,No. 46552,46552,2 |
| Citation | 124 Ga.App. 488,184 S.E.2d 185 |
| Parties | Paradise JACKSON v. The STATE |
| Court | Georgia Court of Appeals |
D. C. Campbell, Jr., Thad W. Gibson, Albany, for appellant.
Robert W. Reynolds, Dist. Atty., Albany, for appellee.
Syllabus Opinion by the Court
The defendant appeals a conviction of second degree arson and burglary. Held:
1. Where, as here, the testimony of a witness called by the State, did not surprise, mislead, or deceive the prosecuting attorney who called the witness, the witness having informed the attorney about 15 minutes before being called that he would not follow an earlier extrajudicial statement, it was error to allow the State to impeach the witness under the provisions of Code § 38-1801, as amended, and to allow in evidence for impeachment the extrajudicial statement of the witness. 'The law is so particular in its requirements of caution upon the part of one who introduces a witness to the court, and thereby vouches for his veracity, that a strict showing is required before one will be allowed to repudiate a witness voluntarily called by him, by attempting to impeach him.' Luke v. Cannon, 4 Ga.App. 538, 542, 62 S.E. 110. 'It is not sufficient that he shall have made contradictory statements; such statements must have deceived, and led the party complaining to introduce him, and thus, unwittingly, to have been damaged by statements different from what he expected.' McDaniel v. State, 53 Ga. 253, 254. Also, see Dixon v. State, 86 Ga. 754, 13 S.E. 87.
2. Despite some evidence that the confession or confessions of the defendant were involuntary, and objections to admissibility, the trial judge submitted the issue of voluntariness to the same jury that adjudicated guilt. 'It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.' Jackson v. Denno, 378 U.S. 368, 395, 84 S.Ct. 1774, 1791, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, 1224. A mere ruling of the trial judge that he finds the issue in dispute and will let it go to the jury is insufficient. Cardell v. State, 119 Ga.App. 848, 853, 168 S.E.2d 889; Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593.
Judgment reversed.
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...witness is put on the stand what the testimony of the witness will be. Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Jackson v. State, 124 Ga.App. 488, 184 S.E.2d 185; Cherb v. State, Tex.Cr.App.,472 S.W.2d 273; United States v. Dunmore, 8 Cir., 446 F.2d 1214. However, there was no object......
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