Robinson v. State

• Decision Date: 14 May 1907
• Citation: 57 S.E. 315,128 Ga. 254
• Parties: ROBINSON v. STATE.
• Court: Georgia Supreme Court

57 S.E. 315

128 Ga. 254

ROBINSON v. STATE.

Supreme Court of Georgia

May 14, 1907

Syllabus by the Court.

Proof of inability to find a witness after diligent search may, in some circumstances, be sufficient to establish that such witness is inaccessible, within the meaning of Pen. Code, § 1001, and be a sufficient reason for allowing the testimony of such witness, rendered on a former trial, to be read, at the instance of the accused, in a criminal case. The sufficiency of the search is a matter left to the discretion of the trial judge, whose judgment will not be reversed unless a manifest abuse of discretion appears. In the present case no such abuse of discretion has been made to appear.

The charge of the judge, when taken in its entirety, fairly submitted to the jury all of the material issues in the case and the extracts upon which error is assigned do not contain any instruction which would be calculated to mislead the jury or prejudice the accused.

The accused, while making his statement, was about to refer to a matter of which he had knowledge only from hearsay, and was interrupted by the judge, with an admonition that he must state that only which he knew of his own knowledge. In a few moments, before the accused had left the stand, the judge withdrew the admonition and told the accused that he could state any matter that he desired; and the accused proceeded with his statement, and referred to a matter of which he knew nothing except from hearsay, and which was apparently the matter about to be referred to when the judge interrupted him. Held, that the interruption of the judge in the first instance furnishes no sufficient reason for reversing the judgment refusing to grant a new trial.

The opinion of a witness is not admissible in evidence when all of the facts and circumstances are capable of being clearly detailed and described, so that the jurors may be able readily to form correct conclusions therefrom.

A verdict in a criminal case is not vitiated by the fact that it is received in the absence of the clerk, when the judge the Solicitor General, the accused, and his counsel are all present at the time when the verdict is received and published.

The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.

Error from Superior Court, Early County; W. C. Worrill, Judge.

John Robinson was convicted of murder, and brings error. Affirmed.

H. M Calhoun, L. L. Lyre, and J. R. Pottle, for plaintiff in error.

Arnold & Arnold, J. A. Laing, Sol. Gen., and Jno. C. Hart, Atty Gen., for the State.

COBB P.J.

The accused was tried for the offense of murder and convicted. He excepts to the judgment overruling his motion for a new trial.

1. Error is assigned upon the refusal of the judge to admit the testimony of a witness who was sworn and examined at the committing trial; such testimony being offered on the ground that the witness was inaccessible. The Code declares: "The testimony of a witness, since deceased, or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by any one who heard it, and who professes to remember the substance of the entire testimony, as to the particular matter about which he testifies." Pen. Code 1895, § 1001. In Pittman v. State, 92 Ga. 480, 17 S.E. 856, it was held that the death of a witness, sworn on a former trial, would authorize the reading of his testimony in behalf of the state on a subsequent trial, but that the removal of the witness from the state, and the consequent inability to procure his attendance, the accused doing nothing to prevent his attendance, will not, the witness being still alive, render such testimony admissible. The reason at the foundation of this ruling is the recognition of the constitutional right of the accused to be confronted with the witnesses. This right may be waived by the accused, and therefore, when the witness whose testimony it is sought to read was a witness in behalf of the accused, the testimony would be admissible, even though the witness be still living. It is to be noted that the Code section above cited does not make the admission of the testimony dependent upon the witness being beyond the jurisdiction of the court; that is, beyond the limits of the state. He must be inaccessible, and the question arises, therefore, whether, within the meaning of this section, a witness who is within the limits of the state is inaccessible. It was said in an English decision in 1623: "If a party cannot find a witness, then he is as it were dead unto him," and his former testimony may be read, "so as the party make oath that he did his endeavor to find his witness, but that he could not see him nor hear of him." Godbolt, 323. In 1685, in Oates' trial, the same principle was recognized. 10 Howell's St. Tr. 1227, 1285. Mr. Greenleaf, after stating that the absence of the witness from the jurisdiction would be a sufficient reason for allowing his testimony on a former trial read, says: "Inability to find the witness is an equally sufficient reason for nonproduction by the better opinion, though there are contrary precedents. The sufficiency of the search is usually and properly left to the trial court's discretion." 1 Gr. Ev. (16th Ed.) 284. See, also, 2 Wig. Ev. § 1405; 16 Cyc. 1096, et seq. While a witness beyond the limits of the state is inaccessible, it is not absolutely necessary to show such to be the fact, in order to make the rule laid down in the Code section above referred to applicable in a particular case. As has been seen, the witness may be inaccessible even though he be within the limits of the state; that is, within the jurisdiction of the court. Whether he is so inaccessible depends upon the diligence shown by the party seeking to use his testimony on a former trial in ascertaining where the witness is, and in attempting to bring him into court. Whether such diligence has been shown as to authorize the admission of his testimony on a former trial is a question addressed to the discretion of the trial judge; and the same rule will be applied to the decision of the question of diligence in a particular case as is applied to decisions of other matters involving the exercise of discretion. The judgment will not be reversed unless a manifest abuse of discretion appears.

The evidence on the question of diligence, taken most favorably for the accused, shows that during the latter part of the week before the case was set for trial the accused sent an officer to an adjoining county to look for the absent witness at the place where he was supposed to be at work, a few miles from the State line. When the officer approached, the witness fled. It was not shown that he left the state, but there were witnesses who testified that such was the supposition. The officer then returned home without the witness. The case while set for trial on Monday of the following week, was not actually tried until Wednesday. The court had previous to the trial issued an attachment for the witness. The officer to whom this attachment was delivered testified that he inquired all around the witness's home, which was in still another county, and among the people who knew him,...