Roberts v. State
| Decision Date | 16 April 1894 |
| Citation | 21 S.E. 132,94 Ga. 66 |
| Parties | ROBERTS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. In order for a defendant in a criminal case to take the benefit of the act of September 27, 1883, touching the production of convicts in the penitentiary as witnesses, application must first be made to the governor, as the act prescribes. The observance of that requirement is necessary, and its omission is more than failure in its mere technicality.
2. If section 4027 of the Code applies where the person desired as a witness is imprisoned as a convict in the penitentiary, it imposes no absolute duty on the judge of the superior court to direct or require that the order for producing the convict shall be executed at the expense of the public, even though the applicant for the order be unable from his poverty to defray the expense, and even if the judge, in the exercise of his discretion, might, if he thought proper, make the county chargeable therewith. The constitutional right to have compulsory process for witnesses does not include any right of having them brought into court at public expense, and no such right has been expressly conferred by a statute, except by the act of 1883, above referred to, under which the right is not unconditional, but limited by the sound discretion of the judge, to be exercised on the special facts of the case.
3. The application in the present case being made under the Code and the judge not having denied the order or process applied for, but having only declined to have it executed at the charge of the county, there was no error.
4. There was no abuse of discretion in denying a new trial on any of the grounds of the motion.
Error from superior court, Fulton county; R. H. Clark, Judge.
George B. Roberts was convicted of robbery, and brings error. Affirmed.
Under Code, § 4027, providing for compulsory process to obtain witnesses for a defendant in a criminal case, a judge of the superior court is not bound to require the production of a convict from the penitentiary at the public expense, though defendant is unable to defray such expense.
The following is the official report:
Roberts was convicted of the offense of larceny from the person of John Wade of certain money. The indictment charged that the crime was committed with one O'Shields, who had been tried, and finally convicted of the crime. Roberts moved for a new trial, and, his motion being overruled, excepted. The motion contained the general grounds that the verdict was contrary to law, evidence, etc. Also the following: When the case was called for trial, defendant moved for a continuance on account of the absence of two witnesses, to wit, William B. Hall and Porter Stocks, and because the court refused to allow them to be brought into court and sworn in defendant's behalf. These witnesses were in the state penitentiary, from the same court, and, when defendant was put on notice that the case would be called for trial, he presented a petition to the court, asking that an order be granted allowing these witnesses to be brought into court, to be sworn in his behalf; and defendant alleges that the court erred in refusing to grant the request. The petition referred to alleged, in brief: Defendant will need the testimony of Hall who is now in the penitentiary. He expects to prove by Hall that Hall is the man who robbed Wade, and defendant not the man, and it was impossible for it to be defendant; that on the night defendant was charged with the larceny Hall robbed Wade; that on that night, December 24, 1892, about 9:30 o'clock, Hall went on Collins street, Atlanta, and met a man, who was very drunk, and did not know where he was; that he had a bundle, and Hall took it from him, and unrolled it but found it was nothing but some old overalls; that Hall took him by the arm, and started to walk towards Decatur street; that he (Wade) gave Hall a dollar, and insisted on his getting some whisky; that the barrooms were closed, and he gave Wade a drink out of a bottle he (Hall) had in his pocket, and kept the dollar; that Wade was beastly drunk, and he caught hold of Wade, and kept him from falling; that Wade pulled a large pocketbook out of his hip pocket, and then tried to put it back, saying he had plenty of money; that Hall got the money from Wade before he got it back in his pocket, and Wade was so drunk he did not know what he was doing; that they came up Decatur street to Loyd, and separated, etc.; and that he afterwards heard of two men being arrested for robbing a man on Decatur street, and on the same night he robbed a man, and knew they were charged of the same crime he had committed. The petition further alleged that Porter Stocks is a material witness for the defense, and is also confined in the penitentiary; that he can prove by Stocks that on O'Shields' return to the jail, after testifying on the last trial of petitioner, O'Shields stated to Stocks that he had sworn falsely against petitioner, and that petitioner was not guilty, but that O'Shields did so because he thought it would be an advantage to him in the case in which he had been convicted that petitioner has been confined in jail about nine months, and has therefore not had an opportunity for making and accumulating money; that he has no property, and is in no way able to pay the expenses of bringing these witnesses to and from the penitentiary. He prayed that an order be granted directing the sheriff to go to the penitentiary and bring them into court as witnesses. The presiding judge declined to grant the prayer of the petition, because O'Shields has escaped from jail, and cannot be found, and Stocks' evidence is only to discredit O'Shields, and he cannot be a witness. Further, because Hall, commonly called "Skinny Hall," was known to the judge officially, the judge having presided in his trial, and sentenced him to the penitentiary for several offenses. In these trials he confessed to his guilt in one or more cases, where the evidence demonstrated his confession was to relieve the other defendants, he having been already convicted. He is in such condition no jury would believe him. To bring him from where he is, is difficult and expensive, and will give him an opportunity to escape. Knowing the utter uselessness of his evidence, the judge felt it his duty not to put the expense of such a proceeding upon the county, but, notwithstanding, if the county or state could be relieved of the expense, would order him brought. Because of newly-discovered evidence showing that Hall and Lanier, whose testimony was the only direct testimony against movant, committed perjury, the evidence otherwise not being sufficient in law to warrant the jury in finding a verdict of guilty. In support of these grounds of the motion movant produced the affidavit of Griggs, to the following effect: On the night of December 24, 1892, he was at Carrie Clarke's house, on Collins street, Atlanta, and saw Wade there in the early part of the night. He saw Wade in the parlor, and in a little while missed him, but in a half hour or an hour he returned, and remained in the parlor probably an hour or more. It was...
To continue reading
Request your trial