102 Ga. 506 | Ga. | 1897
Lead Opinion
In the case of Johnson v. State, 14 Ga. 62, this court stated the rule regarding the sequestration of witnesses to be, that while the State, before the examination commences, “may-demand that the witnesses should retire, in order to each being questioned in the absence of the others,” the court was not bound, at the instance of the accused, to take any action in the premises, though a request on his part that an ordér looking to this end be passed might very properly be granted “ as matter of indulgence and not of right.” Since the adoption of our code, a much more equitable practice has been of force, whereby the accused is put upon an equal footing with the State in this respect, and the court is enjoined to effect the object of the rule so “far as practicable and convenient.” Penal Code, §1017; Turbaville v. State, 58 Ga. 545. As formerly, however, “it is in a great degree discretionary with the presiding judge whether he will allow some ” of the witnesses to remain in the courtroom to assist in the conduct of the case, when he is requested so to do by one of the parties. Carson v. State, 80 Ga. 170; Dale v. State, 88 Ga. 557; Betts v. State, 66 Ga. 508; May v. State, 94 Ga. 76; Hinkle v. State, Ibid. 596; Thomas v. State, 27 Ga. 287, 296.
Certainly, in the present case, there was no abuse of discretion in acceding to the request of the solicitor-general that the prosecutrix might be permitted to remain in the court-room to •assist him in the prosecution. And even though it may not have been likewise proper to also allow her father and mother
It was insisted in the argument here, that although it may not have been improper, in the first instance, for the court to allow the prosecutrix and her father and mother to remain in the court-room, it was manifest error to permit them to do so after counsel for the accused had called the court’s attention to “signs ” made by the former to her father while he was on the stand, and to similar “signs” made by the mother to the prosecutrix while the latter was testifying. It was also urged that the court committed error in not thereupon promptly declaring a mistrial. An inspection of the record shows, however, that the several grounds of the motion for a new trial, setting forth the complaint of the accused concerning this alleged misconduct on the part of the prosecutrix and her mother, can not properly be considered by this court, as the same are not verified. The trial judge in this connection certifies that he “was looking directly at the parties in both instances, and saw no signs made”; yet, when attention was directed by counsel to this alleged improper conduct, “declared with positiveness that anything of the kind was wrong and must not be done. There was no request that a mistrial be declared.” If counsel was satisfied that the prosecutrix and her parents were guilty of conduct calculated to prejudice the accused, notwithstanding the court
• Exception-was taken to certain extracts from the charge of the court bearing upon this branch of the case, which were substantially in accord with the principles of law just stated. •Without dealing specifically with the various criticisms thereon urged by counsel for the accused, we rule generally that no error was committed in this connection. As no new or specially important questions are thereby presented for determination, no further discussion or citation of authority would be profitable.
Concurrence Opinion
I concur in the judgment, but dissent from the ruling in the ninth division of the decision.