Wilson v. State

• Decision Date: 10 January 1956
• Docket Number: No. 2,No. 36018,36018,2
• Citation: Wilson v. State, 93 Ga.App. 229, 91 S.E.2d 201 (Ga. App. 1956)
• Parties: Ruth K. WILSON v. The STATE
• Court: Georgia Court of Appeals

Page 201

91 S.E.2d 201

93 Ga.App. 229

Ruth K. WILSON v. The STATE.

No. 36018.

Court of Appeals of Georgia, Division No. 2.

Jan. 10, 1956.

Rehearing Denied Jan. 20, 1956.

A. J. Whitehurst, Merlin H. Holland, Thomasville, for plaintiff in error.

No appearance for defendant in error.

Syllabus Opinion by the Court.

CARLISLE, Judge.

The defendant and her husband were jointly indicted on July 19, 1955, for a murder committed on June 15, 1955, in Thomas County, Georgia. Upon her motion to sever, the defendant was tried separately and convicted of voluntary manslaughter. Her motion for a new trial, based on the usual general grounds and four special grounds was denied. In her bill of exceptions brought to this court the defendant assigns error upon the denial of her motion for a new trial and also assigns error on the trial court's overruling two motions, made in open court between the time of indictment and the time of her trial, that the defendant's counsel be permitted to interview the only eyewitness to the murder, who was being held in jail incommunicado as a material witness for the prosecution, and who had been so confined since the day of the murder. It appears that these two motions--one made before the eyewitness had been subpoenaed by the State and the other made thereafter--were made to the court after the sheriff of the county and the solicitor general of the circuit had refused to permit counsel for the defendant to interview this witness and were made by counsel for the defendant in an effort to prepare properly for his client's defense.

The Constitution guarantees to every person accused of a crime a fair and impartial trial and benefit of counsel, art. 1, § 1, par. 5, Code, § 2-105. The State has no more right to deny defendant's counsel access to a witness material to the defense than it would have to secrete the witness to prevent the defendant's using him, or to deny the defendant the right to process to compel the attendance of a witness, and the defendant cannot be required to call a person to the stand as his own witness without knowing in advance what his testimony will be. See State v. Gangner, 73 Mont. 187, 235 P. 703; People v. Paskowitz, 151 Misc. 171, 270 N.Y.S. 799; Exleton v. State, 30 Okl.Cr. 224, 235 P. 627, 630. Counsel for the defendant not only had the right, but it was his plain duty towards his client, to fully investigate the case and to interview any persons who might be able to assist him in ascertaining the truth concerning the event in controversy. 'Witnesses are not parties, and should not be partisans. They do not belong to either side of the controversy. They may be summoned by one or the other or both, but are not retained by either. It would be a most unfortunate condition of affairs if a party to a suit, civil or criminal, should be permitted to monopolize the sources of evidence applicable to the case to use or not as might be deemed most advantageous.' State v. Papa, 32 R.I. 453, 459, 80 A. 12, 15. While the court has a discretionary power to order the State to permit...