Wright v. State, 36129
| Decision Date | 24 June 1980 |
| Docket Number | No. 36129,36129 |
| Citation | 268 S.E.2d 645,246 Ga. 53 |
| Parties | WRIGHT v. The STATE. |
| Court | Georgia Supreme Court |
Milton F. Gardner, Milledgeville, for appellant.
Joseph H. Briley, Dist. Atty., Arthur K. Bolton, Atty. Gen., W. Davis Hewitt, Asst. Atty. Gen., for appellee.
Sidney Wright was convicted for the murder of George Upson. The state did not seek the death penalty. Wright was sentenced to life imprisonment. He appeals. This court reverses.
1. Wright contends that the trial court erred in instructing the jury to ignore the testimony of his only witness other than himself, and in refusing to allow the witness to complete his testimony. During the witness' testimony, it became apparent that he had violated the sequestration rule by being present in the courtroom during the testimony of other witnesses.
Under the peculiar facts of this case, the trial court erred by striking and excluding the testimony of the defendant's sole witness who supported defendant's testimony. Violation of the sequestration rule did not affect admissibility of the testimony. The district attorney's recourse was to seek instructions from the court informing the jury that the presence of the witness in the courtroom in violation of the rule should be considered in determining the weight and credit to be given to the testimony of the witness. Pippins v. State, 224 Ga. 462(2), 162 S.E.2d 338 (1968); Dudley v. State, 148 Ga.App. 560(3), 251 S.E.2d 815 (1978).
Upson was shot with a pistol during a drinking party at a mutual friend's home. The witness whose testimony was stricken and excluded was the only person present at the party other than Wright whose version of the shooting coincided with or supported Wright's contention that the pistol went off accidentally while Wright and Upson were struggling to gain possession of the pistol. These two errors are harmful, requiring reversal, because no other witness supported defendant's testimony regarding the homicide. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976). The first and second enumerations of error are meritorious.
2. The charge on implied malice was not impermissibly burden-shifting. Burney v. State, 244 Ga. 33(6), 257 S.E.2d 543 (1979), cert. den. 444 U.S. ----, 100 S.Ct. 463, 62 L.Ed.2d 385; Tucker v. State, 245 Ga. 68(5), 263 S.E.2d 109 (1980).
3. There is no merit in the assertion that the trial court erred in failing to...
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