Merneigh v. State

• Decision Date: 10 March 1971
• Docket Number: No. 2,No. 45835,45835,2
• Citation: 123 Ga.App. 485,181 S.E.2d 498
• Parties: F. Joseph MERNEIGH v. The STATE
• Court: Georgia Court of Appeals

Page 498

181 S.E.2d 498

123 Ga.App. 485

F. Joseph MERNEIGH v. The STATE.

No. 45835.

Court of Appeals of Georgia, Division No. 2.

March 10, 1971.

Rehearing Denied March 19, 1971.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Stephen A. Land, Tony H. Hight, John A. Schupp, Atlanta, for appellee.

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

This appeal is from the overruling of motions for new trial after conviction and sentence for the misdemeanor offenses of false report of a crime and simple battery. Held:

1. This court is by mandate of the Constitution of Georgia bound by the precedents established by the Supreme Court of Georgia. Constitution of Georgia, Art. VI, Sec. II, Par. VIII; Code Ann. § 2-3708. In view of these precedents, despite persuasive authority to the contrary, where the issue of alibi is present in a case it is not error for any reason argued and insisted upon to instruct the jury that 'alibi as a defense should be established to the reasonable satisfaction of the jury, but not necessarily beyond a reasonable doubt.' See and compare Young v. State, 225 Ga. 255, 167 S.E.2d 586; Chaffin v. State, 225 Ga. 602, 170 S.E.2d 426; Thornton v. State, 226 Ga. 837, 178 S.E.2d 193; Parham v. State, 120 Ga.App. 723, 171 S.E.2d 911; Pritchard v. State, 122 Ga.App. 780, 178 S.E.2d 808; Smith v. Smith, (Shoemake v. Whitlock), Civil Actions Nos. 14304, 14305, United States District Court, Northern District of Georgia, Atlanta Division, 321 F.Supp. 482, opinion dated December 23, 1970.

2. The third enumeration asserts that the trial court 'erred in permitting appellant's wife to invoke the privilege of not testifying against appellant in the presence of the jury after the State was informed she would do so.' Pretermitting the question of whether timely and proper objection was made followed by a motion for mistrial so as to invoke a ruling by the court, we see no harmful or reversible error. The presumption is that a witness is competent to testify, and the burden is on the objecting party to show incompetency. Adams v. Barrett, 3 Ga. 277(3); Goodson v. State, 162 Ga. 178, 132 S.E. 899. A witness offered must be permitted to testify unless there is an objection. Dowdy v. Watson & Lewis, 115 Ga. 42, 41 S.E. 266.

As Judge Pannell pointed out in the recent case of Gates v. State, 120 Ga.App. 518, 171 S.E.2d 375, since the 1957 amendment to Code § 38-1604 (Ga.L.1957, p. 53) a wife is now a competent but not a compellable witness in a criminal proceeding for or against her husband, whereas prior to the amendment she was neither competent nor compellable in such a situation. Being a competent witness the State had the right to call her and require her to testify unless she then and there claimed her privilege not to do so. Though the Court was informed that she had claimed this privilege at a previous trial and would do so again, she might have changed her mind at anytime before taking the stand. See James v. State, 223 Ga. 677, 683, 157 S.E.2d 471 and Kellar v. State, 226 Ga. 432(1), 175 S.E.2d 654.

We know of no binding authority which requires the reversal of a criminal case merely because an otherwise competent witness has invoked statutory or constitutional immunities in the presence of the jury.

3. No error appearing for any other reason, the judgment is affirmed.

Judgment affirmed.

EBERHARDT, J., concurs.

HALL, P.J., PANNELL and QUILLIAN, JJ., concur specially.

BELL, C.J., DEEN, WHITMAN and EVANS, JJ., dissent.

HALL, Presiding Judge (concurring specially).

A famous playwright once said that judges' instructions to the jury are 'grand conglomerations of garbled verbiage and verbal garbage.' Georgia's traditional charge on alibi is strong proof to support this claim. See Judge Powell's opinion in Smith v. State, 3 Ga.App. 803, 61 S.E. 737; Chief Justice Bleckley's opinion in Harrison v. State, 83 Ga. 129, 135, 9 S.E. 542; Green, Georgia Law of Evidence 75-77, § 21; Agnor, 11 Encyclopedia of Georgia Law (Evidence) 379, § 138; Parham v. State, 120 Ga.App. 723, 171 S.E.2d 911; and Judge Edenfield's opinion in Smith v. Smith, Warden (Shoemake v. Whitlock) Warden, Civil Actions #14304, 14305, United States District Court, Northern District of Georgia, Atlanta Division, 321 F.Supp. 482, opinion dated December 23, 1970.

The sequence of Stump v. Bennett, 398 F.2d 111; Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.E.2d 415; Johnson v. Bennett, 8 Cir., 414 F.2d 50; Parham v. State, supra; Thornton v. State, 226 Ga. 837, 178 S.E.2d 193; Pritchard v. State, 122 Ga.App. 780, 178 S.E.2d 808; the Smith and Shoemake cases in the United States District Court, supra; Cash v. Smith, 227 Ga. 314, 180 S.E.2d 542; and now the case sub judice, has produced a judicial merry-go-round which can hardly be expected to promote respect for law, order and justice in the minds of the bar and the general public. If the Georgia appellate courts lack either the will or the authority to correct what Judge Powell called a 'plain, palpable incongruity,' the whole process of criminal justice in Georgia is exposed to ridicule. Convictions in alibi cases will continue to be mere acts of futility since the defendants will seek and obtain release by the United States District Court. Apparently the only practical solution to the problem lies with the good common sense of out trial judge who can avoid this disasterous charge and thereby preserve what would otherwise be a final judgment in a criminal case.

PANNELL, Judge (concurring specially).

I concur with Division 2 of the majority opinion. I concur with Division 1 of the opinion only because we are bound by the rulings of the Supreme Court of Georgia under our Constitution and for this reason only.

EVANS, Judge (dissenting).

I dissent from Division 2 of the opinion and the judgment of affirmance.

The transcript in this case shows that prior to the introduction of evidence, while out of the presence of the jury, defense counsel objected to the State requiring defendant's wife to appear before the jury and testify as to her unwillingness to become a witness against her husband, stating: 'This is highly prejudicial, to the defendant, to bring the witness in before the jury and I would like to move at this time that they not call her in before the jury.' State's counsel insisted upon its right to require defendant's wife to 'state herself from the witness chair whether she does or does not want to testify for or against her husband', and the trial judge ruled that he had such right. Accordingly, thereafter, during the time when testimony was being introduced on behalf of the State, State's counsel announced: 'The State calls Mrs. Janice Lee Merneigh, the wife of Freddie Joseph Merneigh.' Defense counsel stated: 'I believe we will have to have something outside the hearing of the jury.' The court refused to conduct these proceedings outside the presence of the jury and State's counsel administered an oath to this witness and, after proving her name and relationship to the defendant, inquired: 'Q. As the defendant's wife do you or not wish to testify?' To which she responded: 'A. I do not wish to testify for or against,' and she was thereupon excused.

This was very prejudicial to the defendant and could have been so easily obviated by the trial court's requiring these proceedings conducted in the absence of the jury. Both the trial court and counsel seemed determined to have all this brought out in the presence of the jury which, in my opinion, deprived the defendant of having a fair trial.

It is obvious that State's counsel was seeking to make the defendant's wife a witness by implication and innuendo. The jury should not have been concerned with or apprised of whether defendant's wife wished to testify for or against her husband, and the only conclusion the jury could have reached, under such...