162 Ga. 111 | Ga. | 1926
Lead Opinion
Lester Pullen was served with two subpoenas to attend the July term, 1925, of Whitfield superior court, one to appear before the grand jury and one to attend as a witness in the case of the State v. Dave Sloan, charged with selling, making, and possessing intoxicating liquors. Pullen failed to obey either of these subpoenas. Two rules were issued against him for contempt of court, and the same were served upon him. On the trial of the proceeding for contempt he admitted receiving the subpoenas. The trial judge sentenced him in each case to pay a fine of $200 and to serve 20 days in jail, evidently under the Civil Code of 1910, § 4849 (5). Pullen sued out a writ of habeas corpus against the sheriff of the county; and on the hearing of the habeas corpus proceeding the court remanded Pullen to jail to complete the jail sentence imposed by the court in the contempt cases.
It is insisted by plaintiff in error that the superior court was without power to punish him by both fine and imprisonment under the Civil Code, § 4849, but that if the plaintiff in error can be punished at all it is under § 5852, which provides that “The court may proceed by attachment, to compel the attendance of a witness who fails to obey the precept, and also to punish him by fine not exceeding $300. In addition thereto such a witness shall be liable in damages to the person causing him to be subpoenaed, for his failure to attend.” This section is taken from the judiciary act of 1799 (Acts 1799, p. 26), which declares that “Where it shall appear, in manner aforesaid, that' a witness in any cause shall have been duly summoned, and such witness shall fail to appear, it shall be the duty of the court, on motion, to issue an attachment against such defaulting witness, returnable to the next court, and shall fine such witness in a sum not exceeding $300, unless he or she shall make a sufficient excuse for such non-attendance, which shall be judged of by the.court, but shall nevertheless be subject to the action of the person at whose suit such witness shall
In the ease of Crosby v. Potts, 8 Ga. App. 463, 466 (69 S. E. 582), Judge Powell, in discussing the inherent powers of the courts to devise ways to compel witnesses to testify, said: “Just how the performance of this duty of giving testimony should be compelled is a matter which from time to time has been the subject of various statutes; but the better view seems to be that it
So we reach the conclusion that the court had authority to fine the plaintiff in error not exceeding $300 for his failure to attend court under § 5852 of the Code of 1910; and that if it was necessary in order to secure the attendance of the plaintiff in error at court from that time, and to testify, the court had ample authority to secure his attendance by requiring him to give bail, or, in default thereof, to go to jail. See, in this connection, Constitution of Georgia, art. 1, sec. 1, par. 20 (Civil Code of 1910, § 6376). Civil Code (1910), §§ 4643, 4644.
Judgment reversed.
Concurrence Opinion
concurring specially. Lester Pullen refused to appear as a witness before the grand jury, as commanded in a