James v. State
| Decision Date | 18 October 1977 |
| Docket Number | No. 3,No. 54467,54467,3 |
| Parties | Morris JAMES v. The STATE |
| Court | Georgia Court of Appeals |
King, Phipps & Associates, Herbert E. Phipps, C. B. King, Albany, for appellant.
D. E. Turk, Dist. Atty., Gary C. Christy, Asst. Dist. Atty., Abbeville, for appellee.
1. The evidence, although largely circumstantial, is ample to uphold the conviction for the offense of deceptive business practices by securing payment for a load of 30,440 pounds of soy beans and in fact delivering only 6,500 pounds. The practice was for the purchaser, Gold Kist, Inc., to weigh in the sellers' trucks after which the drivers proceeded to the delivery line and dumped the soy beans. The empty truck was then weighed and the seller paid for the difference in weight. In the present case the defendant weighed in a fully loaded blue truck. He was subsequently noticed in the delivery line with a green truck about half full of soy beans, and a quick check located the original truck on the premises of defendant's relatives, whereas the partial load was represented to be and delivered as the larger quantity which had been previously weighed. The defendant's motion for directed verdict was properly denied.
2. The right, on invoking the rule of sequestration (Code, § 38-1703), to have the witnesses testify out of each other's hearing, is substantive and mandatory. Poultryland, Inc. v. Anderson, 200 Ga. 549, 562, 37 S.E.2d 785. The burden of showing an exception (where the witness is needed to advise the district attorney, or where the absence of an official witness would impair the efficiency of the court) is on the state. Montos v. State, 212 Ga. 764, 765, 95 S.E.2d 792. If that burden is carried, the witness should then be sworn first in order that his testimony be taken before he has the unfair advantage of hearing the other witnesses for the state. Tift v. Jones, 52 Ga. 538(4); Massey v. State, 220 Ga. 883, 895, 142 S.E.2d 832. As demonstrated by Massey, failure to do so or offer a sufficient reason for not doing it is reversible error. See also Stuart v. State, 123 Ga.App. 311, 180 S.E.2d 581. However, in later expressions of the opinion of the Supreme Court (Jarrell v. State, 234 Ga. 410, 420(6), 216 S.E.2d 258; Fountain v. State, 228 Ga. 306(3), 185 S.E.2d 62 and McNeal v. State, 228 Ga. 633(4), 187 S.E.2d 271); it has been held that where a reason is proffered by the district attorney and the trial court exercises his discretion, not only in allowing the witness to remain in the courtroom, but also in allowing him to hear the testimony of other witnesses before himself testifying, no error is shown. We presume this means there may be, but in those cases was not, an abuse of discretion, and that the reviewing court might still find, under the facts of a given case, that such procedure in the face of the Code section and as a mere matter of accommodation to the district attorney, violated the substantive rights of the defendant. The only reason offered here for not taking the witness first after allowing him to remain in the courtroom as the nominal prosecutor was that the district attorney felt it would be confusing to the jury to take this testimony out of sequence, and before laying a proper foundation. The question under all the testimony in the case is a close one. While disapproving the procedure used (a witness should not, save in very exceptional circumstances, be allowed to remain in the courtroom after the rule of sequestration is invoked and then also allowed to testify after the other witnesses have been heard) we cannot be certain that the trial court abused his discretion in the instant case.
3. During the trial and on cross examination of one of the state's witnesses defense counsel ascertained that the witnesses had made written statements shortly after the events in question and thereupon asked that the court order copies to be turned over to him for examination or in the alternative that the court make an in camera inspection of the material for the purpose of determining whether they contained exculpatory material or contradictory statements which might be relevant...
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Mitchell v. State
...or where the absence of an official witness would impair the efficiency of the court) is on the [S]tate. [Cit.]" James v. State, 143 Ga.App. 696 (2), 240 S.E.2d 149 (1977). If the State fails to meet this burden, the trial court abuses its discretion in permitting a witness to remain in the......
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