Robertson v. State
| Decision Date | 22 June 1971 |
| Docket Number | No. 1,No. 46289,46289,1 |
| Citation | 124 Ga.App. 119,183 S.E.2d 47 |
| Court | Georgia Court of Appeals |
| Parties | George O. ROBERTSON v. The STATE |
Calhoun & Kernaghan, William C. Calhoun, Augusta, for appellant.
R. William Barton, Dist. Atty., Augusta, for appellee.
Syllabus Opinion by the Court
The defendant was tried for murder and convicted of voluntary manslaughter.
1. In a homicide prosecution the defendant can introduce proof that the deceased was a person of violent and turbulent character only where it is shown prima facie that the accused had been assailed by the deceased and was honestly seeking to defend himself. Doyal v. State, 70 Ga. 134. The only evidence in this case that the deceased was the assailant and that the defendant was honestly acting in self-defense comes from the sworn testimony of the defendant. The trial court refused to permit a defense witness to testify that the deceased had a bad character for violence and turbulence. It is apparent that the trial judge excluded this evidence upon a long line of decisions which have held that the foundation evidence that the deceased was the aggressor in making an attack upon the accused cannot come from the defendant's 'statement' alone. See Chapman v. State, 155 Ga. 393, 117 S.E. 321; Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28; Tanner v. State, 213 Ga. 820, 102 S.E.2d 176; Dennis v. State, 216 Ga. 206, 115 S.E.2d 527. Our research reveals that all of these cases were decided at a time when a defendant was only entitled to make an unsworn statement to the jury. The 1962 amendment to Code § 38-415 granted the defendant a right to testify under oath. Ga.L.1962, pp. 133, 134. Now, the defendant may elect to be sworn or may follow the older procedure of merely making an unsworn statement. Sworn testimony of a defendant has the same evidentiary value as the testimony of any other witness. Hogan v. State, 221 Ga. 9, 142 S.E.2d 778. Obviously, the earlier cases apply only where the defendant makes an unsworn statement. The defendant's testimony under oath established a prima facie showing that the deceased was the aggressor and formed a sufficient basis for the introduction of evidence that the deceased had a bad reputation for violence and turbulence. The exclusion of this evidence was erroneous and harmful.
2. Error has been enumerated on the rulings of the trial judge in excluding the former testimony of two witnesses given at a former trial of this case. Defendant offered this testimony upon the ground that the witnesses were both inaccessible under Code § 38-314. Before former testimony can be admitted the party offering it must show that the witness is inaccessible; and the question of inaccessibility is one for the determination of the trial court in the exercise of a sound discretion and the trial court's ruling will not be disturbed unless a manifest abuse of discretion has been shown. Estill v. Citizens and Southern Bank, 153 Ga. 618, 113 S.E. 552. The preliminary proof in the case of one witness, the former wife of the defendant, consisted only of a statement of counsel made in his place. Counsel stated that the last time he had contact with this witness was in August, 1969. The trial was held in May, 1970. This contact consisted of counsel going by her housetrailer and she was found to be not present. Counsel was told by another party...
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Riley v. State
...of inaccessibility is one for the determination of the trial court in the exercise of its sound discretion. See Robertson v. State, 124 Ga.App. 119, 120, 183 S.E.2d 47 (1971). While it is true that no showing was made of the inaccessibility of the two crime lab witnesses, this does not, as ......
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Pittman v. State, 50029
...statement, and that upon making the election as to one of the alternatives he waives the right as to the other. In Robertson v. State, 124 Ga.App. 119, 120, 183 S.E.2d 47, we said that 'The 1962 amendment to Code § 38-415 granted the defendant a right to testify under oath. Ga.L.1962, pp. 1......
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Thomas v. State, A89A1274
...discretion and the trial court's ruling will not be disturbed unless a manifest abuse of discretion has been shown.' Robertson v. State, 124 Ga.App. 119, 120 (183 S.E.2d 47). The primary consideration on appeal is not whether this court agrees with the trial court's finding, but whether tha......
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Adams v. State, 52642
...was going to kill him-that the accused had been assailed by the deceased and was honestly seeking to defend himself. Robertson v. State, 124 Ga.App. 119(1), 183 S.E.2d 47 and cits. This error was not cured by the fact that the defendant was allowed to testify as to the deceased's bad reputa......