180 Ga. 654 | Ga. | 1934
Stillman Lowe, on behalf of Tula Mae Lowe, obtained from the Judge of the Southwestern Circuit a writ of habeas corpus directed to W. E. Taylor, sheriff and jailor of Bandolph County, the Judgte of the Superior Court of Bandolph County being at the time absent from his circuit. The writ was later made returnable before the latter for a hearing on February 9, 1935. The facts which appear from the record and are not disputed show that on December 29, 1934, Stillman Lowe was arrested on a suspicion of haying killed Hillman Lowe, and that on the same day Tula Mae Lowe was taken into custody and confined as a material witness, and that a few days later Mattie Mae Thomas was also confined in jail as a material witness. It appears that on January 3, 1935, T. T. Molnar, representing that he had been employed as counsel for the accused, called at the jail and asked to be shown a warrant for his arrest. The warrant had not then been sworn out. He was permitted to confer with the accused, but not with the witnesses. After leaving the jail, he stated on the outside that his employment was also to secure the release of the two witnesses. Thereafter, on the same day, a warrant was sworn out against Stillman Lowe. Subsequently Molnar made other efforts to confer with the witnesses, and was refused, though the sheriff offered to permit a conference in his presence. It appears that at the commitment hearing of Stillman Lowe he stated that he had been employed by the mother of the accused to represent the witnesses. On January 4, 1935, acting upon an unsworn petition by the solicitor-general of the circuit that he had information that unless the two witnesses were placed under bond for their appearance before the grand jury it was possible and probable that they would not be available for use of the State in the prosecution of the case against Stillman Lowe, the Honorable C. W. Worrill, Judge of the Superior Court of Bandolph County, passed an order that the sheriff of Bandolph County hold and keep confined the said witnesses until bond be given for their appearance at the next term of the court and from term to term until the case of Stillman
The sheriff testified, without objection, that she had stated to him that she did not employ Molnar, did not desire his services, and that Molnar had never told him that he was employed by her; that the reason he put the witnesses in jail was that he had information that the attack by Stillman Lowe upon his brother, Hill-man Lowe, who subsequently died from his wounds, was made two or three weeks before the time when he confined the witnesses, and they had kept the matter quiet, and that he was holding them to keep them from the influence of those interested in the accused; that when Tula Mae Lowe was on the witness stand at the commitment hearing, and was asked whether she was present when Stillman Lowe struck his brother, Hillman Lowe, Molnar objected tó practically all of the questions, and advised her not to answer, on the ground that her testimony might incriminate her, notwithstanding that he, the sheriff, stated in open court that he was not holding them on any criminal charge. He further testified that Tula Mae Lowe stated in open court at the commitment hearing that she did not know that she was represented, did not want a
The plaintiff assigns error on the refusal of the court to 'strike the answer of the. respondent. The answer set forth that the respondent was holding Tula Mae Lowe as a material witness against Stillman Lowe under a legal order passed by the Judge of the Superior Court of Kanclolph County. That court is a court of general jurisdiction. No lack of jurisdiction being shown in 'the answer of the respondent, its jurisdiction to issue the order of confinement must be presumed. The court did not err in overruling the motion.
In Ong Seen v. Burnett, 232 Fed. 850, the expression, “dispose of the party as law and justice require,” was construed to mean “not as law and justice required, at the time of the arrest, but as law and justice require at the time of the hearing.” Other cases are cited therein. Similarly, we hold that it is the plain intent of the law of Georgia that upon the hearing of a writ of habeas corpus the investigation is, not as to whether the original confinement was illegal, but whether or not the principles of law and justice require at the time of the hearing that a person be released. What is the power of the court in this investigation ? In Crosby v. Potts, 8 Ga. App. 463 (69 S. E. 582), Judge Powell, in an able opinion in which both of his associates concurred, dealt with a similar though not the precise question before this court. He furnishes an interesting exposition of the history of the compulsion of testimony, and after referring to what is now § 24-104 of the Code of 1933, states: “We conclude, therefore, that since the law manifestly intends that the courts shall have adequate power to compel the performance of the respective duties falling on those connecte'd in any wise with the ease, it may, where the exigencies so require, cause a witness to be held in custody, and in jail if need be, unless he gives reasonable bail for his appearance at the trial. The outsider who is a witness, and who in this capacity is ordered to be held in confinement unless he gives, bail, often suffers less hardship than the outsider who as a juror is held in confinement for days and even weeks without bail. It is hardly necessary to say that the imprisoning of a witness to secure his attendance is a harsh remedy — one that should be very sparingly exercised. No court should ever order a witness to be imprisoned in default of bond, except from grave necessity. Unless his testimony is material and important and unless there is strong likelihood that if he is not restrained by confinement or bond he will violate the mandates of
The third headnote need not be elaborated.
Judgment affirmed.