Robertson v. Heath
| Decision Date | 10 March 1909 |
| Parties | ROBERTSON v. HEATH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where on a proceeding by writ of habeas corpus to determine the custody of a child, certain affidavits were offered, and objection was made to them as a whole on the ground that they were irrelevant, hearsay, and stated opinions, instead of facts, and many of the statements contained in them were not subject to such objection, there was no error in overruling it.
[Ed Note.-For other cases, see Trial, Cent. Dig. §§ 223-225; Dec Dig. § 85. [*] ]
Where the writ of habeas corpus is used as a means of determining the custody of an infant, the better practice is to hear evidence viva voce, or taken by deposition or interrogatories, after notice and with opportunity for cross-examination. But this is not an absolute and inflexible rule, and the presiding judge is vested with discretion as to admitting affidavits under the circumstances of a particular case which render it necessary or proper.
[Ed Note.-For other cases, see Habeas Corpus, Dec. Dig. § 85. [*]]
On the merits of this case, there was no error in awarding the custody of the child to the father, instead of to the maternal grandmother.
[Ed. Note.-For other cases, see Habeas Corpus, Dec. Dig. § 85. [*]]
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Application by C. F. Heath for a writ of habeas corpus against S.E. Robertson to obtain possession of a child. Judgment for petitioner, and defendant brings error. Affirmed.
Boykin Wright, for plaintiff in error.
C. Henry & R. S. Cohen, for defendant in error.
C. F. Heath obtained a writ of habeas corpus against Mrs. S.E. Robertson, for the purpose of securing the custody of his child, a girl four years of age, alleged to be illegally held by the respondent, in disregard of his parental rights. The respondent, who was the maternal grandmother of the child, claimed that the father had relinquished to her his parental control, by a valid and binding contract, when the child was only a few weeks old, and after the death of its mother. The father, who had remarried, denied this. The evidence was conflicting. The presiding judge awarded the custody to the father, and the grandmother excepted.
1. On the hearing most of the evidence was delivered orally by the witnesses. Three affidavits were offered by the plaintiff, tending to support other evidence in his favor, by which it was sought to prove, among other things, that he expressed unwillingness to part with the custody of the child permanently and declined to do so. Objection was made to their admission, "on the ground that they were irrelevant, hearsay, stated opinions, instead of facts, and for the further reason that respondent was denied the right and privilege of cross-examining the witnesses." The objection was overruled. Many of the recitals in the affidavits were relevant, were not hearsay, and were not mere opinions. Thus there were statements that the father sent money and clothes to the respondent for the support of the child, and that he has asked the respondent if she needed any more money for that purpose and received a negative answer. The objection was to the affidavits as a whole. If any special parts of them were subject to objection, they were not pointed out.
2. The question then arises, were these affidavits properly admitted over objection on the ground that the respondent was denied the right of cross-examination? Properly exercised, this is an important right. Its function is not merely to confuse or harass adverse witnesses, but to develop the whole truth, which does not always fully appear from the testimony of a witness on his examination in chief. Facts may be omitted, without any wrongful intent, which give an entirely different appearance to the case; or, if feeling or interest colors the evidence of a witness, whether intentionally or not, this can often be made to appear. Generally speaking, testimony is not admissible, on a final trial of the issues in a case, where there has been no opportunity for cross-examination, save in certain special instances, which the law writers treat as exceptions to the rule excluding hearsay evidence. On the hearing under a writ of habeas corpus, involving the custody of a child, the better practice is to require the testimony to be delivered from the stand, or by depositions or interrogatories duly taken, with the privilege of cross-examination preserved, where practicable. Affidavits are often unsatisfactory at best. The affiant swears that what he states is true; but he does not swear that it is the whole truth, nor has the adverse party an opportunity to inquire whether it is so. We do not commend the practice of determining so important a question as the awarding of the custody of a child, with all the possible consequences to its future life and happiness, upon mere ex parte affidavits, as a general practice. Such a decision is final, under the circumstances then presented.
But the introduction of affidavits in certain instances is permissible. It has long been the recognized practice to use affidavits on the hearing of applications for interlocutory injunctions or for the appointment of receivers pendente lite. It has been held permissible, on the hearing of applications for temporary alimony, to cause witnesses to be sworn, subject to cross-examination, or to admit affidavits. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659. Personally, when he was a judge of the superior court, the writer found the former method far more satisfactory, though less expeditious; and no doubt other trial judges have had the same experience. To see and listen to a witness for ten minutes, with the privilege on the part of the court to interpose a question when it is necessary for the full development of the truth, often gives the presiding judge a clearer insight into the real situation, in an alimony case, where his discretion is invoked, where the feelings of the parties are frequently deeply stirred, and where the judgment may be enforced by imprisonment, than to listen to affidavits for an hour. In such a case, there is not infrequently an indisposition to tell the whole truth, and thus open the door of the closet where the family skeleton may lie concealed. Affidavits on the same side are sometimes as uniform in appearance as eggs in the shell; but, if one of them be prodded with the point of a cross-question or two, the yolk is at once exposed.
Still the rule is not arbitrary or inflexible in certain hearings. On the subject of writs of habeas corpus to test the legality of the detention of one deprived of his liberty, Pen. Code 1895, § 1222, provides as follows: "If the return denies any of the material facts stated in the petition, or alleges others upon which issue is taken, the judge hearing the return may, in a summary manner, hear testimony as to the issue, and to that end may compel the attendance of witnesses, the production of papers, or may adjourn the examination of the question, or exercise any other power of a court which the principles of justice may require." The writ is also used as a means of determining the custody of minor children. The presiding judge often has to use great discretion in judging of the status of parties and what is for the welfare of the child. He needs all the light he can obtain for the just and faithful...
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