Mallin v. Mallin

• Decision Date: 09 July 1971
• Docket Number: No. 26567,26567
• Citation: 227 Ga. 833,183 S.E.2d 377
• Parties: Zenobia E. MALLIN v. Stanley A. MALLIN.
• Court: Georgia Supreme Court

Page 377

183 S.E.2d 377

227 Ga. 833

Zenobia E. MALLIN v. Stanley A. MALLIN.

No. 26567.

Supreme Court of Georgia.

July 9, 1971.

Rehearing Denied July 30, 1971.

Syllabus by the Court

The trial judge did not err in holding that the defendant had a constitutional right to refuse to answer the questions propounded to him in the interrogatories of the plaintiff.

Westmoreland, Hall & Bryan, Harry P. Hall, Jr., P. Joseph McGee, Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Hoke Smith, Atlanta, for appellee.

MOBLEY, Presiding Justice.

This appeal is from the denial of a motion to require the defendant to answer interrogatories, and to hold him in contempt for failure to answer interrogatories. The trial judge certified the case for immediate review.

In an action by Mrs. Zenobia E. Mallin against her former husband, Stanley A. Mallin, for modification of an alimony award, the plaintiff filed interrogatories directed to the defendant. He declined to answer questions 3 through 37, on the ground that to do so might tend to incriminate him, claiming immunity under the Fifth Amendment to the Constitution of the United States (Code § 1-805) and Code § 38-1205. The trial judge held that the defendant had the constitutional right to refuse to answer the questions.

1. The plaintiff (appellant) contends that the trial judge failed to determine whether or not the refusal of the defendant to answer certain interrogatories was well taken. In support of this contention she relies on language from the court's order wherein the court stated that 'the determination of whether or not such an answer might tend to criminate the defendant is a matter that he alone can determine,' and cited the decision of this court on a previous appearance of the case, Mallin v. Mallin, 226 Ga. 628, 176 S.E.2d 709, and Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818.

In Mallin v. Mallin, 226 Ga. 628, supra, at page 629, 176 S.E.2d 709, this court commented on the defendant's refusal to produce evidence at a former trial on the ground that it might tend to incriminate him, and stated that he had a constitutional right to thus refuse to produce evidence.

In Bass v. Bass, 222 Ga. 378, 385, 149 S.E.2d 818, 824, supra, this court quoted from Empire Life Ins. Co. v. Einstein, 12 Ga.App. 380, 384, 77 S.E. 209, where the Court of Appeals quoted an excerpt from a ruling made in the trial of Aaron Burr (United States v. Burr, Fed.Cas. No. 14,692e), as follows: 'When a question is propounded it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court can not participate with him in this judgment, because they can not decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judge would strip him of the privileges which the law allows, and which he claims. It follows necessarily, then, from this state of things, that if the question be of such a description that the answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If in such a case, he say, upon oath, that his answer would criminate himself, the court can demand no other testimony of the fact.'

The language of the judge's order in the present case does not show, unmistakably, that he first made a determination that the answers could incriminate the defendant, before leaving the decision to the defendant as to whether they might tend to incriminate him. However, it...