*1 638 S. 307 SC Virginia, 443 U. v. Jackson doubt. a reasonable
beyond 661 App. 152 Ga. (1979); Almond v. 2781, 61 LE2d Judgment affirmed. April 15, 1980. 1980 Submitted Friedberg, Stephen Drolet, Slaton, J. Assis- Attorney, Joseph R.
Lewis tant District THE McELROY v. STATE. Judge. Chief
Deen, court urged is that the trial ground The sole for reversal to be recalled to the to allow a witness committed error of the in violation stand for further (Code 38-1703), that witnesses shall be examined which states both § and that "no mere shall hearing irregularity out of the of each other case, recess, protracted after a exclude the witness.” court, referring witness was called and the to the invoked said, get “Let’s all the witnesses out of the court- room,” whereupon group ap- of witnesses left the room. As the said, minute. recalled a second witness the court “Wait a pellant out step You asked for the rule and instructed all the witnesses to know the she hasn’t done it.” The then said he did not leave, sitting witness failed to at which the "She was judge replied: there, right back looked at her when told her to take you you stand. I am not going let her testify.”
From the
made after
reviewing rulings
confusing variety
rule was violated we find a
All
appellate
emphasize
comments.
the cases
that the trial court
not,
a wide discretion in
deciding
whether
to allow the
that a reason
many emphasize
irregularity
is insufficient
offending
bar the
Exclusion of the
witness’
(Baker
48, 51,
79
App.
has been reversed
131 Ga.
205 SE2d
Mize,
(1922))
Wallace v.
(1974);
(7), 112
while on
SE 724
other occasions exclusion of the
has been affirmed
the facts of the case combined with the discretion inherent
(Thomas
(3),
(1978);
441
639 (3), (1976); Star Jewelers 162 223 141 Durham, (1978); Ransum Education, Chattooga Bd. County (1978)). still others admission of such has been affirmed. Watts v. Ga. 725 *2 367) (1913). (1) (79
Hudgins Ga. SE felt of present case the court that the failure obviously to see that left the appellant’s the this witness courtroom when so at the least an impermissibly negligent instructed was point No her "impeachment” action. has been made as to what been, and her testimony already completed would have she had do not chief. We find the these circumstances to be an abuse of discretion. P.
Judgment J., McMurray, affirmed. JJ., Carley, specially. concur Birdsong Smith, JJ., Sognier,
Argued 5, 1980 March Farless, Floyd H. Larry Salmon,
F. District H. William Attorney, Boggs, Assis- tant Judge, concurring specially.
Carley,
I concur in the result reached
the
I
by
majority
agree
with
all
is
that
said in
opinion.
the
majority
would like to observe that
this court’s
the
sustaining of
exercise of the discretion of the trial
court is mandated by
Supreme
the
Court cases cited by the majority,
Thomas v.
(3)
to wit:
(241
I am authorized to state that Judge Birdsong joins special concurrence. Judge, dissenting.
Sognier, I respectfully from dissent the majority’s determination that witness who has violated the sequestration rule in the judge’s discretion may be barred from I am well testifying. aware of the rule requires that the of proponent a witness whose appearance is contested to submit an offer of proof for determination the of relevancy of such materiality before the witness proffered that such to the allegiance paid must be And heard. be consider an we will in the record before included must be such permit to the refusal error based on of enumeration such an dealing with are not However, instant case we in the of abridgment the error; rather, dealing are with we enumeration a witness in to criminal case of a defendant right the violated the solely witness had behalf because own his rule. called by the rule was had A witness who violated witness. primary of a state to she had testify because The refused In rule. violated there are held: this court "[W]hile power where discretionary the court’s se dealing with observed, appears the rule been questration properly McCartney, McCartney stated as 785): witness, when any right
'A have party’s unabridged, except by the rights, of his is material the assertion 38-1603, by is and this unaffected exceptions under Code § *3 Thus, 38-1703. of witnesses Code § [Cits.] is a irregularity, of an the disobedience order contempt offender to affect subjecting punishment witness, it not render the witness his credit but does as ” State, incompetent.’ Accord, rule, does not effect, trial opinion states that a my matters; rather, unabridged have discretion in such has an party behalf, exceptions witnesses in his own with certain more applicable might permissible here. While discretion cases, civil strictly should be construed a criminal case. where, here, This is true as particularly witnesses sought children, were of whom 14-year-old 12 and one alleged was the victim. I believe the trial court Accordingly, committed reversible error
testify.
I am Judge authorized state that Smith and Judge in this join