Thomas v. State

• Decision Date: 06 April 1910
• Docket Number: 2,480.
• Citation: 67 S.E. 707,7 Ga.App. 615
• Parties: THOMAS v. STATE.
• Court: Georgia Court of Appeals

67 S.E. 707

7 Ga.App. 615

THOMAS v. STATE.

No. 2,480.

Court of Appeals of Georgia

April 6, 1910

Syllabus by the Court.

Where witnesses have been separated at request of counsel a person who was not sworn and sequestered, but who had remained in the courtroom and heard the testimony in the case, is still competent to testify as a witness in the cause. If he has been purposely kept in the courtroom in disobedience of the orders of the court, with knowledge of the fact that he was to be used as a witness, the fact that he has heard the testimony goes to his credit, and the court may punish either the party who caused him to remain in the courtroom or the witness himself or both, according to the circumstances, for contempt of court, but it is error to refuse to allow him to testify, unless the party offering him has expressly waived the right to use the witness.

A party's right to have the testimony of any witness, when material to the assertion of his rights, is, under the provision of the evidence act of 1889 (Acts 1889, p. 85; Civ Code, § 5269), unabridged, except by the exceptions therein specified and is unaffected by section 5280 of the Civil Code, which relates to the sequestration of witnesses.

Error from City Court of Ashburn; J. B. Williamson, Judge.

Neal Thomas was convicted of crime, and brings error. Reversed.

John B Hutcheson and Jas. H. Pate, for plaintiff in error.

J. A Comer, Sol., for the State.

RUSSELL J.

The general grounds of the defendant's motion for a new trial need not be considered further than to say that the evidence in behalf of the state would have authorized the verdict which found the defendant guilty. Inasmuch, however, as it appears from an assignment of error in the amendment to the motion for new trial, as approved by the trial judge, that the defendant was deprived of testimony to which he was legally entitled, a new trial must result.

During the trial counsel for the defendant called to the stand from the courtroom one Robert Rouse, and administered the oath to him. Thereupon counsel for the state objected to his testifying upon the ground that the witnesses had been sequestered by order of the judge upon the defendant's motion, and that this witness had been in the courtroom during the trial of the case, and had sat by the defendant's counsel, and assisted him in striking the jury. Counsel for the defendant stated to the court that the witness' testimony would be beneficial to the defendant's case, and that the witness was not sworn and sent out with the other witnesses at the beginning of the trial, for the reason that the defendant had no means of apprehending, and could not possibly have apprehended, that the testimony which the evidence of this witness would rebut would be brought out in the trial. Counsel for the defendant was proceeding to state what the witness would testify whereupon counsel for the state objected to his doing this in the presence of the jury. The defendant's counsel then requested the court to retire the jury, and permit him to state to the court what the testimony of the witness would be, so that the court could properly exercise his discretion. The court refused to retire the jury, or permit counsel for the defendant to state what facts he sought to prove by the witness, and refused to allow the witness to testify in the case.

We think the court erred in excluding the testimony of the witness. The judge certifies that the court's ruling was as follows: "I think that, where counsel ask a ruling, they ought to be bound by it." Section 1017 of the Penal Code leaves it discretionary with the trial judge as to whether he will sequester all or a part of the witnesses in a case, and likewise makes it a matter of discretion as to whether he will punish disobedience of his order requiring the witnesses to be separated. It is also a matter of discretion as to whether he will allow witnesses who have already been sworn to return to the room where witnesses who have not yet testified are assembled, and whether he will permit sequestered witnesses to converse with other parties. Any violation of the judge's rule in regard to the sequestration is punishable as for contempt, but we know of no law under which it has been held that the judge can forbid the witness to testify by reason of the fact that he has remained in the courtroom and heard the testimony, unless under the peculiar circumstances of the case the party who offered the testimony could rightfully be held to have waived the testimony of the witness.

If in every case without exception, where the judge had ordered the sequestration of...