Lowe v. Taylor
| Decision Date | 18 May 1935 |
| Docket Number | 10719. |
| Citation | 180 S.E. 223,180 Ga. 654 |
| Parties | LOWE v. TAYLOR, Sheriff. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The superior court of Randolph county being a court of general jurisdiction, and the answer of the sheriff, the respondent to a writ of habeas corpus, not showing lack of jurisdiction of the court to order the confinement of a material witness its jurisdiction will be presumed; and the court did not err in not striking the answer.
2. "Every court has power to control, in furtherance of justice, the conduct of its officers and all other persons connected with the judicial proceeding before it, in every matter appertaining thereto." Code 1933, § 24-104, subd 4. The accused having been bound over, at a commitment hearing, on a charge of voluntary manslaughter, it will be presumed that the magistrate did his duty and forwarded to the superior court of Randolph county a certified transcript of the proceedings; and, consequently, notwithstanding that the accused had not been indicted, the court had before it a matter in which it could control a material witness and order his confinement in the county jail until designated bail be given. Under the facts as shown by the record, the court did not abuse its discretion, and did not err in remanding the witness to jail.
3. The assignment of error on the ground that the court erred in not permitting the material witness to confer with the attorney for the petitioner is, under the facts shown by the record without merit.
Error from Superior Court, Randolph County; C. W. Worrill, Judge.
Habeas corpus proceeding by Stillman Lowe, on behalf of Tula Mae Lowe, against W. E. Taylor, sheriff and jailor of Randolph county. To review a judgment overruling petitioner's motion to dismiss respondent's answer, and a judgment denying petitioner's counsel right to confer with Tula Mae Lowe, and a judgment remanding Tula Mae Lowe to the county jail, petitioner brings error.
Affirmed.
T. T Molnar, of Cuthbert, for plaintiff in error.
R. A. Patterson, Sol. Gen., of Cuthbert, and Hooper & Hooper, of Atlanta, for defendant in error.
Stillman Lowe, on behalf of Tula Mae Lowe, obtained from the judge of the Southwestern Circuit a writ of habeas corpus directed to W. E. Taylor, sheriff and jailor of Randolph county; the judge of the superior court of Randolph county being at the time absent from his circuit. The writ was later made returnable before the latter for a hearing on February 9, 1935. The facts which appear from the record and are not disputed show that on December 29, 1934, Stillman Lowe was arrested on a suspicion of having killed Hillman Lowe, and that on the same day Tula Mae Lowe was taken into custody and confined as a material witness, and that a few days later Mattie Mae Thomas was also confined in jail as a material witness. It appears that on January 3, 1935, T. T. Molnar, representing that he had been employed as counsel for the accused, called at the jail and asked to be shown a warrant for his arrest. The warrant had not then been sworn out. He was permitted to confer with the accused, but not with the witnesses. After leaving the jail, he stated on the outside that his employment was also to secure the release of the two witnesses. Thereafter, on the same day, a warrant was sworn out against Stillman Lowe. Subsequently, Molnar made other efforts to confer with the witnesses, and was refused, though the sheriff offered to permit a conference in his presence. It appears that at the commitment hearing of Stillman Lowe he stated that he had been employed by the mother of the accused to represent the witnesses. On January 4, 1935, acting upon an unsworn petition by the Solicitor General of the circuit that he had information that unless the two witnesses were placed under bond for their appearance before the grand jury it was possible and probable that they would not be available for use of the state in the prosecution of the case against Stillman Lowe, the Honorable C. W. Worrill, judge of the superior court of Randolph county, passed an order that the sheriff of Randolph county hold and keep confined the said witnesses until bond be given for their appearance at the next term of the court and from term to term until the case of Stillman Lowe be disposed of, and that the amount of the bond be $1,500. On January 5, 1935, a commitment hearing was had before a justice of the peace, and Stillman Lowe was committed under a charge of voluntary manslaughter. No commitment was made as to the two witnesses, and they remained in confinement until the habeas corpus hearing. At such commitment hearing the said T. T. Molnar made a request that he be permitted to confer privately with the two witnesses, and, being refused, cautioned them in open court that they had a right to refuse to answer incriminating questions. Tula Mae Lowe testified that she was near by when the mortal blow was struck by Stillman Lowe, heard it, though she did not witness it, but came from around the house and saw the victim on his knees on the ground, the blood streaming from his head. After being cautioned by Molnar, she gave no further testimony. Upon the hearing of the habeas corpus writ, a motion to dismiss the answer of the sheriff, the respondent, reciting that he had held the witness, Tula Mae Lowe, from December 29, 1934, until January 4, 1935, without a warrant, but that from the latter date he had held her by virtue of a legal order passed by the judge of the superior court of Randolph county, was overruled. The petitioner excepted.
The sheriff testified, without objection, that she had stated to him that she did not employ Molnar, did not desire his services, and that Molnar had never told him that he was employed by her; that the reason he put the witnesses in jail was that he had information that the attack by Stillman Lowe upon his brother, Hillman Lowe, who subsequently died from his wounds, was made two or three weeks before the time when he confined the witnesses, and they had kept the matter quiet, and that he was holding them to keep them from the influence of those interested in the accused; that when Tula Mae Lowe was on the witness stand at the commitment hearing and was asked whether she was present when Stillman Lowe struck his brother, Hillman Lowe, Molnar objected to practically all of the questions, and advised her not to answer, on the ground that her testimony might incriminate her, notwithstanding that he, the sheriff, stated in open court that he was not holding them on any criminal charge. He further testified that Tula Mae Lowe stated in open court at the commitment hearing that she did not know that she was represented, did not want a lawyer, and that she stated "a while ago" that she had not employed a lawyer. He further testified that the witnesses had not requested a hearing of any kind; that Molnar made no request to have them brought before a magistrate, and that neither of them had requested Molnar to be brought to them; that Molnar made a...
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