Mize v. State, 58518
| Decision Date | 02 November 1979 |
| Docket Number | No. 58518,58518 |
| Citation | 152 Ga.App. 190,262 S.E.2d 492 |
| Parties | MIZE v. The STATE. |
| Court | Georgia Court of Appeals |
Robert D. Matthews, Hartwell, for appellant.
J. Cleve Miller, Dist. Atty., Lindsay A. Tise, Jr., Francis J. George, Asst. Dist. Attys., Hartwell, for appellee.
Defendant appeals his conviction of burglary. The principal issue on appeal concerns denial by the trial court of his motion to dismiss for failure of the state to afford him the rights contained in Code Ann. § 27-706, which provides: "Before an indictment against a peace officer charging such officer with a crime which is alleged to have occurred while he was in the performance of his duties shall be returned by a grand jury, the rights provided in Section 89-9908, relating to certain officials, shall be afforded such officer and such officer shall be notified of such contemplated action by the district attorney of the county wherein the grand jury shall convene." Code Ann. § 89-9908 recites:
At the time of the commission of the crime for which the defendant was indicted and convicted, he was employed by the City of Royston, Georgia, as a police officer. Testimony provided by two accomplices called by the state showed that while in his police uniform and on duty the defendant transported the accomplices to the B & W Gas Company where the burglary took place. The issue we must decide is whether the defendant was "in the performance of his duties" at that time within the meaning of Code Ann. § 27-706. Held :
1. Appellant offers no authority for his contention that the rights and procedures of Code Ann. §§ 27-706 and 89-9908 apply to him under the circumstances presented here, nor does our research reveal any cases which are controlling on the issue. In construing Code Ann. §§ 40-1617 and 89-9908, which are similar to Code Ann. § 27-706 but involve public officials, our Supreme Court has held: "The statutes are narrowly drawn (and) relate only to misconduct in public office." Orkin v. State, 236 Ga. 176, 192, 223 S.E.2d 61, 74 (1976). It is obvious that Code Ann. § 27-706 was intended to afford to police officers the same procedural protection afforded to other public officials as to accusations arising from the performance or non-performance of their official duties. See generally Steele v. State, 227 Ga. 653, 182 S.E.2d 475 (1971). The performance of such official duties does not include the commission of burglaries. The first enumeration of error is without merit.
2. Appellant next enumerates as error a violation of the witness sequestration rule as it applied to Mr. Stone, a GBI agent who investigated the burglary in question. Over objection, the court permitted Mr. Stone to remain in the courtroom and hear the testimony of another witness, a Mr. Bennett, before giving...
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...the recall of a criminal defendant for further cross-examination. (E.g. State v. McKissic (Mo.1962) 358 S.W.2d 1, 5; Mize v. State (1979), 152 Ga.App. 190, 262 S.E.2d 492.) We believe this is the proper standard governing the recall of a criminal defendant for further cross-examination, and......
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