Brooks v. State , 69 Ga. App. 697 ( 1943 )

This case was set for argument on April 5, 1943. On April 1 the attorney for the plaintiff in error notified the court that he had been sick for five or six weeks and that he had prepared a "skeleton brief," which he was forwarding to the court. He asked for "a few days time in which to complete" his brief and argument. On April 2nd the clerk of this court wrote counsel that in practically all cases supplementary briefs were filed without special permission of the court, and acknowledged receipt of the original brief. The clerk suggested that a supplementary brief be forwarded within ten days. On April 9th the brother of Hon. Thomas J. Shackelford wrote the clerk, acknowledging receipt of the letter of April 2nd and requesting that the clerk call to the court's attention the fact that Hon. Thomas J. Shackelford was sick with pneumonia, and requested an extention of time to file "a supplementary brief." On April 10th the clerk wrote to Hon. F. C. Shackelford as follows: "I have to-day presented your letter of the 9th instant to the court, and am instructed to advise you that two weeks from this date is allowed in which to file supplemental brief in the above case. If a longer time than this should be necessary, you will please notify me, and I will take the matter up with the court again."

Hearing nothing further from any one concerning the case, the court on June 8 rendered its opinion. This was practically five weeks from the time within which the court was to await the filing of a supplementary brief. On June 17 counsel filed a motion for rehearing, in which he stated that "he was not permitted, on request, to file a brief," that the only recourse he had was to file a motion for rehearing. We mention the letters above merely to explain the situation.

The main argument on the motion for rehearing is that the court erred in not admitting the testimony of Hoyt Dickson, who testified in a former trial. The testimony of Hoyt Dickson in the former trial was briefed and agreed upon as correct, and was approved by the court. Upon a careful review of the case we see no reason to change our original opinion. It does not appear from the record that a motion for a continuance of the case was ever made. It is true that after an announcement of ready had been made and issue had been joined on the indictment, and the State had rested its case, the question regarding the testimony of Hoyt Dickson given on the former trial and his absence at the hearing came into question. Then it was that counsel offered the testimony of Hoyt Dickson given on the former trial. The solicitor general objected to it on the ground that the inaccessibility of the witness had not been established. The court sustained the objection and refused to admit the evidence given at the former trial.

The record reveals that the father of Hoyt Dickson testified: "Hoyt Dickson is my son. He is about 24 years old. My son Hoyt went to Atlanta and volunteered for the army. He has been in the army since the 7th day of last August a year ago. I have not been down there lately to see him, but he was at home the 7th day of September for court and they put court off here in September; he came home for court. [Italics ours]. He is at Valdosta where there is a camp. He is under military regulations there and I wouldn't think he could leave without permission. I couldn't say whether he has been shifted from there or not; it has been a couple of weeks since I heard from him. I do not know whether he is still there or has been shifted." Whereupon the following colloquy took place: "Mr. Shackelford [counsel for defendant]: We think in all fairness to the defendant we ought to be able to read the testimony of this witness, Mr. Dickson. He is a very important witness and we have no way of getting him here.

"Judge Murray [solicitor-general]: We object to it. They have not shown this witness is not accessible. They have shown he is in the state and have shown he voluntarily came here at the regular September term expecting to attend court. They have not shown there has been an effort made for him to attend this term of court, and I think they have fallen short of the rules.

"Mr. Shackelford: I didn't know he was in the army.

"Mr. Hall: Mr. Shackelford and I were only recently employed, and it was only this morning we learned this witness was in the army.

"Mr. Shackelford: We would like to have time to get him here.

"The court: It would take too long.

"Mr. Shackelford: Your honor will consider this as offered?"

It will be observed that this colloquy took place after the State had rested. It was the first time the court was informed as to the whereabouts of the absent witness. No effort at all had been made to locate the witness, or to inform the court that the rejected testimony would be offered. The argument of able counsel for plaintiff in error within itself, we think, is sufficient to show that the court did not abuse its discretion in denying the admission of the testimony. He states: "When it was brought to the attention of the court that the witness was absent, and in the military service, and that his testimony in the same case was offered, it was the duty of the court either to give him time, 48 hours, to get witness there, if he could be brought there, or else to allow this witness's testimony read to the jury." If counsel could have ascertained within 48 hours whether the witness was accessible after the State had rested its case, he could have done so before he announced ready. Moreover, the record shows that the witness was in attendance upon the court in September, a month before the trial, and the evidence reveals that he came home for court. And the evidence further reveals that he was then in the army and had been for a year. If he was not inaccessible in September, the record reveals nothing to show that he was inaccessible the following month of October.

Judgment adhered to. Broyles, C. J., and MacIntyre, J.,concur.