Palmer v. State

• Decision Date: 16 November 1918
• Docket Number: 10092.
• Citation: 97 S.E. 460,23 Ga.App. 84
• Parties: PALMER v. STATE.
• Court: Georgia Court of Appeals

97 S.E. 460

23 Ga.App. 84

PALMER v. STATE.

No. 10092.

Court of Appeals of Georgia, Second Division

November 16, 1918

Syllabus by the Court.

The Constitution of the state of Georgia provides: "Every person charged with an offense against the laws of this state shall be furnished, on demand, previously to his arraignment with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded." Article 1, § 1, par. 5 (Civil Code 1910, § 6361; Penal Code 1910, §§ 8, 970). From this it will be seen that when a person is charged in this state with a violation of a criminal law, and demands a list of the witnesses, he is entitled to a list of those only "on whose testimony the charge against him is founded." The second headnote in Keener v. State, 18 Ga. 194, 63 Am.Dec. 269, is as follows: "A defendant in a criminal case, is entitled only to a list of the witnesses sworn before the grand jury." See, also, Inman v. State, 72 Ga. 269 (1). When the names of two witnesses only appear on an indictment it will be presumed, in the absence of proof to the contrary, that the charge against the defendant is founded alone upon their evidence. We do not think a defendant who has "demanded a list of witnesses," and is furnished one which contains the names of more witnesses than appeared before the grand jury, is entitled to a continuance on the ground of "surprise." "The record shows that the accused was furnished with the list of witnesses which he was entitled to demand. The solicitor general was under no obligation to disclose to him other witnesses whom he might see fit to call during the progress of the trial." Echols v. State, 101 Ga. 532, 29 S.E. 14.

Twice during the progress of the trial did the accused ask the court to declare a mistrial: First, "because during the argument of M. E. O'Neal, Esq., of counsel for the state counsel made the following statement to the jury, to wit 'It is not too late for Mr. Custer (referring to movant's counsel) to plead guilty for the defendant.' " When this motion was made the court said: "I will instruct the jury that they will not regard the statement made by counsel to the effect that it was not too late for counsel for the defendant to plead guilty for his client; the jury will not let that statement influence them in the consideration of the case at all. I overrule your motion to declare a mistrial." Second, "because during the concluding argument, the honorable solicitor general made the following statement to the jury, to wit: That 'by reason of this illicit intercourse a child was born, of which, as the state contends the defendant was the father.' " The statement of counsel on which the first motion was based was a statement of a well-settled legal proposition, and was not manifestly improper and prejudicial to the cause of the accused, especially under the instructions given the jury by the court. Macon Ry. Co. v. Parker, 127 Ga. 471 (6) 480 (6), 56 S.E. 616. The original statement of the solicitor general, of which complaint is made, is based upon evidence in the record. Neither this nor what is stated in the motion by Mr. Bell, the solicitor general, as his recollection of what he said, would justify the court in...