Stuart v. State, 45833

• Decision Date: 11 February 1971
• Docket Number: No. 45833,No. 2,45833,2
• Citation: 123 Ga.App. 311,180 S.E.2d 581
• Parties: Leamon C. STUART v. The STATE
• Court: Georgia Court of Appeals

Page 581

180 S.E.2d 581

123 Ga.App. 311

Leamon C. STUART v. The STATE.

No. 45833.

Court of Appeals of Georgia, Division No. 2.

Feb. 11, 1971.

Rehearing Denied March 2, 1971.

James R. Venable, Margaret Hopkins, James Studdard, H. G. McBrayer, Jr., Atlanta, for appellant.

H. Eugene Brown, Dist. Atty., Jonesboro, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted, along with several other persons, for the offense of murder. He was thereafter tried and convicted and sentenced to serve 14 years' impriosnment for voluntary manslaughter. The appeal is from this final judgment, as well as from the order overruling and denying his motion for new trial, as amended. Twenty-four grounds of error are 1. It is possible to violate Code § 38-1703 as to sequestration of witnesses in more than one way. First, the trial judge may abuse his discretion in applying said statute, by permitting these witnesses to remain in the courtroom. See Pippins v. State, 224 Ga. 462(2), at p. 463, 162 S.E.2d 338. Or the trial judge may fail to exercise the discretion vested in him, which would, in effect, be the same as abusing said discretion. Next, the trial judge may permit the witnesses to testify without proper foundation having been laid for bringing them within some exception to the rule of sequestration, once said rule is invoked. The trial judge has wide discretion in such matters.

enumerated. However, no oral argument was made, and counsel confines his written argument to (1) the sufficiency of the evidence to authorize a conviction; (2) an alleged abuse of discretion by the trial judge in failing to grant defense counsel's motion for sequestration of witnesses and permitting a State's witness to remain in the courtroom for the purpose of assisting the prosecuting attorney, and in not requiring this witness to give his testimony prior to the examination of other witnesses; (3) the denial of defendant's motion for a mistrial when the prosecuting attorney made extremely improper and prejudicial [123 Ga.App. 312] remarks in the presence of the jury, and although the court instructed the jury to disregard the comment, yet counsel was not reprimanded for making it; (4) the instruction to the jury on voluntary manslaughter in the heat of passion because there was no evidence in the case to justify such charge; (5) failure to instruct the jury that in determining the question of voluntary manslaughter where conspiracy had previously been charged, the question of conspiracy should not be considered; and (6) failure to instruct the jury on the issue of credibility of a witness who had been allowed to remain in the courtroom and hear the testimony of other witnesses for the State before giving his own testimony. Counsel for appellant advised that a supplemental brief would be filed, arguing all of the other errors enumerated; but none has been filed. The only errors that can be considered, therefore, are those set forth above. Held:

The court shall take proper care to administer the law of sequestration, so far as practicable and convenient. Any mere irregularity shall not exclude the witness. It is proper that such witness who is allowed to remain in the courtroom should be first examined, out of the hearing of the other witnesses, unless there be reasons for not following this rule. The particular circumstances of each case shall control, under the discretion of the court. See Tift v. Jones, 52 Ga. 538, 542-543.

The movant in the motion for new trial not only contended that the trial court abused its discretion under Code § 38-1703 by permitting a certain detective, who was also a witness, to remain in the courtroom after sequestration, but counsel also insisted that this witness should be required to testify first. The solicitor did not want to call this witness first. Whereupon the judge ruled: 'Well, the law states that it is a discretionary matter, but you're entitled to have with you a witness who aids in the prosecution of the case, and also its been the policy in this court in every case that you be allowed to place the witness during the particular trial in order of the proof that you desire.' (Emphasis supplied.) Thus the judge refused to exercise any discretion but followed his policy of allowing the solicitor to call the witnesses as he pleased. The correct rule is to require, 'unless there be special reasons to the contrary,' that such witness be examined in the absence of other witnesses. Tift v. Jones, 52 Ga. 538(4), supra; Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785; Montos v. State, 212 Ga. 764, 95 S.E.2d 792; McGruder v. State, 213 Ga. 259, 98 S.E.2d 564; Massey v. State, 220 Ga. 883, 895, 142 S.E.2d 832. The fair rights of the 2. During the trial the prosecuting attorney asked the judge if he might ask counsel for the defendant if he was going to have 'the other co-defendant testify * * * he said he rested?' The judge replied: 'You don't have the right to make that inquiry.' Whereupon a motion for mistrial was made and denied after considerable discussion and argument in which the judge decided he did not feel it was prejudicial to the extent of depriving the defendant of a fair and impartial trial. When the jury returned, the judge made no remakrs to them but after a few moments instructed them that the remarks of the prosecuting attorney a few moments before were improper and asked the jury to totally disregard this and dismiss it from their minds. The judge had promptly instructed counsel his remark was improper. Further, having a second thought on the matter he instructed the jury it was improper and to totally disregard it. It thus appears the judge took proper steps to correct the situation. It cannot be said he did not reprimand counsel although he may not have chastised him as defense counsel would have desired. The judge did not err in denying the motion for mistrial. See Johnson v. State, 150 Ga. 67(1), 102 S.E. 439; Nelson v. State, 187 Ga. 576, 583, 1 S.E.2d 641; Wells v. State, 194 Ga. 70(5), 20 S.E.2d 580. The grounds of complaint arising out of the denial of the motion for mistrial are not meritorious.

party calling for the rule must be secured, provided the efficiency of the court is not thereby obstructed. The trial judge cannot refuse to accede to such timely requests, and if he does so, it is a denial of a substantial and positive right of that party. The State must show that the witness it requests to be allowed to remain in the courtroom is needed to assist in the conduct of the case, or, if an officer, to guard against an escape by the defendant; or some other reason why the rule shall not be strictly followed. But we do not pass upon whether or not the court initially erred in allowing the detective to remain in the courtroom, since we must also decide whether the court erred in not requiring this witness to testify first. See Shaw v. State, 192 Ga. 660(5), 29 S.E. 477; Hall v. Hall, 220 Ga. 677(1), 141 S.E.2d 400; Talley v. State, 2 Ga.App. 395, 58 S.E. 667; Jones v. State, 75 Ga.App. 610(a), 44 S.E.2d 174. It is discretionary with the judge in consideration of the exigencies of the case to see that this rule is obeyed insofar as is possible, yet the judge did not exercise any discretion here, and accordingly a new trial is required. Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539. The error enumerating the denial of the motion for new trial based on this ground is meritorious.

3. Where a witness who was riding in the car with the deceased testified that they had stolen gasoline from certain church buses, and after putting the gasoline in a car in which they were riding they were followed by another car which was trying to stop them, and at one point they ran the car that was following them off the road, and witness told the occupants of his car to duck 'because I thought they were pretty mad and was going to shoot,' sufficient evidence is shown on which to charge the jury on voluntary manslaughter in that the defendant may have acted upon a sudden heat of passion. Whenever there is evidence, however, slight, sufficient to raise a doubt as to whether or not the homicide was murder or manslaughter, it is the duty of the judge to instruct the jury as to the law applicable to both murder and manslaughter. Anderson v. State, 14 Ga.App. 607, 81 S.E. 802; North v. State, 69 Ga.App. 836(1), 26 S.E.2d 892; Wager v. State, 74 Ga.App. 729, 41 S.E.2d 342; McKinney v. State, 121 Ga.App. 815(6), 175 S.E.2d 893, and cases cited.

4. The evidence here was sufficient to authorize a charge on the law of conspiracy. The mere fact that there was 5. While the witnesses were under the rule here, Detective Burgess was allowed to remain in the courtroom to assist the prosecuting attorney. Thereafter he was used as a witness (which is the subject matter of Headnote 1 of this opinion) and heard other testimony before testifying himself. This would not require a special charge by the court without request as to the credibility of this witness. This witness did not disobey an order of the court and was not subject to a citation for contempt. We find nothing in McWhorter v. State, 118 Ga. 55(6), 44 S.E. 873 or Phillips v. State, 121 Ga. 358(3), 49 S.E. 290 calling for a different ruling. Further, the court's general charge...