Whatley v. State, 27775
| Decision Date | 25 April 1973 |
| Docket Number | No. 27775,27775 |
| Citation | 230 Ga. 523,198 S.E.2d 176 |
| Parties | J. C. WHATLEY v. The STATE. |
| Court | Georgia Supreme Court |
Patton & Flinn, C. Ronald Patton, Rome, for appellant.
F. Larry Salmon, Dist. Atty., Rome, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Thomas W. Greene, Asst. Attys. Gen., Harold N. Hill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
J. C. Whatley was tried and convicted of the offense of murder and sentenced to life imprisonment. During the trial the district attorney moved to introduce the transcript of testimony given by George Morris at the preliminary hearing on the ground that the witness was inaccessible. The defendant objected to the introduction of the transcript and his objection was overruled. He appeals to this court. Held:
Code § 38-314 provides: '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 anyone who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.'
This court declared in Robinson v. State, 128 Ga. 254, 256, 57 S.E. 315, 316:
In the instant case the district attorney moved to introduce the transcript of the testimony of the witness because he was inaccessible. He stated that the witness had been served with a subpoena, that he had previously responded to subpoenas; that he had not responded to this one; that an attachment had been issued that day for him; that the sheriff had been asked to find the witness; and that the witness was working somewhere in Calhoun, Georgia.
The sheriff testified that the witness had not been found but that he was working somewhere in Gordon County, Georgia.
The trial court allowed the introduction of the transcript in evidence and ordered that the attachment be served as soon as possible.
In Taylor v. State, 126 Ga. 557(2), 55 S.E. 474, this court held that a witness is not shown to be inaccessible within the meaning of the Code 'when it merely appears that the witness is absent from the county' and when he was last heard from he was within the limits of the State.
We are of the opinion that the serving of a subpoena in this case and the issuance of an...
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Riley v. State
...was made. The party seeking introduction of the prior testimony must show that the witness is 'inaccessible.' See Whatley v. State, 230 Ga. 523, 198 S.E.2d 176 (1973). The question of inaccessibility is one for the determination of the trial court in the exercise of its sound discretion. Se......
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...and on the following day, clearly do not demand a finding of due diligence in obtaining Poole's presence. See Whatley v. State, 230 Ga. 523, 524, 198 S.E.2d 176 (1973). Hill's delay in attempting to contact Poole and Hill's failure to have any investigator go to Poole's known address are co......
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...on the strategic, rather than diligent. The trial court did not abuse its discretion in overruling defendant's motion. Whatley v. State, 230 Ga. 523, 198 S.E.2d 176 (1973). 3. Todd's third enumeration of error is that the trial court either failed to exercise or abused its discretion in not......