Thompson v. State

Jun 12, 1912
Reporters:
, ,
Before:
Hill
Hill, J.

(After stating the foregoing facts.)

1. We think the court erred, under the facts of this case, in not granting a continuance of the hearing of the motion for a new trial, as asked by the plaintiff in error. The record shows that the defendant had been confined in jail in a different county from that in which the homicide occurred, from the date of his arrest until the day previous to the trial, and that from his poverty the defendant was unable to employ counsel to represent him and prepare for his trial. The court, on the day before the trial, appointed counsel to defend the plaintiff in error; and after representing him at the trial and making a formal motion for a new trial, the attorneys so appointed, it seems, no longer represented him. The newly discovered evidence appears not to have been known to the *271original or present counsel, or to the plaintiff in error, nor under the facts of this case do we well see how it could have been. When the present counsel for the plaintiff in error came into the case, he discovered the evidence and asked a continuance of the motion in order to secure and present it for the consideration of the court. The witnesses refused voluntarily to testify for the plaintiff in error, and counsel asked a continuance of the motion in order that the process of the court could be invoked to compel the witnesses to give evidence. The testimony, if true, is material and vital to the defense. By what method could the defendant get this testimony for use on the hearing? In eases heard on affidavits, including motions for a new trial, the Civil Code, § 5918, provides a method of forcing testimony from an unwilling witness who is a resident of the county in which the suit is pending. Application is to be made to the clerk of the superior court of that county and subpcena obtained, calling upon the witness to appear at the hearing, when the trial judge can require the witness to answer written questions propounded to him, or’can appoint a commissioner for that purpose, or, the witness consenting, his affidavit may then be prepared and sworn to. § 5919 provides that in cases where the witness resides out of the. county (that is, construing the two sections together, out of the county in which the suit is pending), subpoena may be obtained from the clerk of the superior court of the county of the residence of the witness, and the witness thus be required to appear before some officer of that county authorized to administer oaths, and answer written questions prepared for him, the answers to be reduced to writing, sworn to before the officer and by the latter forwarded to the clerk of the court in which the case is pending, as in case of interrogatories. It seems that the legislature by these two sections was providing for only two contingencies: by section 5918, to obtain the testimony of an unwilling witness at a hearing on written testimony in the county in which the case or suit was pending when the witness resided in that county; and by 5919, when the witness resided out of the county in which suit or case was pending. A criminal case is pending in the county in which the venue for trial is laid. If the motion for a new trial is granted, wherever passed upon, it is granted for a new trial in the county of the venue. The effect of an order for the hearing of a motion for a new trial subsequently *272to the regular adjournment of the term of court at which the trial is had is to keep that term of the court open with respect to that particular case until the hearing and determination of the motion at the time it is first set, or pursuant to further specific orders of continuance passed on the day set for the hearing. Herz v. Frank, 104 Ga. 638 (30 S. E. 797); Atlanta Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501). The present case was pending in Jefferson county. A hearing of the motion was set in Washington county. The witnesses whose newly discovered testimony the defendant sought to obtain by compulsion resided in Jefferson county, where the case was pending. If the defendant had any right under these sections, therefore, it was to proceed under section 5918; but this could not avail him, because it provides only for an attendance of the witnesses at a hearing in that county, and the hearing was set elsewhere. He had no method, under the general law, of compelling witnesses to attend a hearing in a county other than that of their residence. If Penal Code §§ 1143 and 1147 are applicable to hearings of this kind held outside of the county of the residence of a witness, they do not give a defendant an absolute right to compel the attendance of a witness, but only upon procuring subpoena signed by the clerk and solicitor-general. If there be any general inherent power in the court to compel a witness, under the circumstances of this case, to testify for the defendant, its exercise is discretionary with the court, and the defendant by the motion itself was seeking the aid of the court in procuring evidence which he had no absolute legal method of securing. If the motion for a continuance had been granted and a hearing set in Jefferson county, the defendant could then have proceeded under section 5918 to make his showing as to what the witnesses would testify with respect to the circumstances attending the homicide, of which, according to the affidavits filed with the motion, they were eye-witnesses. We think a sufficient showing was made with respect to the diligence of the defendant and his counsel in discovering the alleged testimony and of the nature thereof; and upon the showing made by the defendant that he could not secure voluntary evidence from the witnesses, it was the duty of the court to continue the hearing and set it at such time and place as would give the defendant the opportunity of forcing the witnesses to testify concerning the facts material to his case, of which they were alleged to have knowledge.

*2732. Error is assigned in that the court, between the time of the hearing of the motion for a new trial and the rendition of the judgment overruling it, permitted the State’s counsel to file with and read to the judge the affidavit of a witness for the State which was antagonistic to the defendant’s case, that this was done without notice to or knowledge of the defendant or his counsel, and that this affidavit was considered by the judge in forming his judgment overruling the motion. We find no criminal case in which this precise question was involved, but the rulings in a number of civil cases, by analogy, would seem to apply. And if the rule laid down in civil cases is to reverse the judgment in such cases, how much more strongly ought it to apply to a criminal case where personal liberty and life áre involved. In the case of Atlantic &c. Ry. Co. v. Cordele, 125 Ga. 373 (54 S. E. 155), it was held: “The presiding judge who heard the issues involved in the application for injunction, including the questions of whether the required removal was in fact for the convenience and welfare of the public or only for the benefit of another corporation, whether there was a necessity for the proposed change, whether the proposed act would be unreasonable or abitrary, and what would be the effect, if any, upon the operation and property of the plaintiff, having stated, in his order refusing to grant an injunction, that he heard evidence and argument, and also that ‘This order [is] granted after a personal inspection and observation of the tracks and surroundings of the street crossing and tracks involved,’ and it thus appearing that the judge’s personal inspection and observation were made an integral part of his judgment, and it not appearing that this was done with the consent of counsel or parties, the judgment will be reversed, with direction that the case be heard upon the evidence which may be introduced, unless inspection by the judge as part of the proceedings be had with the consent of both parties.” And see Horton v. Fulton, 130 Ga. 466 (4), 467 (60 S. E. 1059); Sylvania Water Co. v. Overstreet, 124 Ga. 235 (52 S. E. 164); City Bank of Macon v. Kent, 57 Ga. 286 (24).

We hold, in view of the peculiar facts of this case, that the judgment of the court below overruling the motion for a new trial should be vacated and set aside, and the motion for a new trial be set for hearing at such time and place as will afford the plaintiff in error an opportunity to examine his witnesses according to the *274provisions of the law as contained in the Civil Code, § 5918 et seq., or in such other manner as may be provided by law, and that the trial judge will rehear the motion and the testimony of the witnesses, and pass upon the motion for a new trial in the light of the showing made as to the newly discovered evidence, if produced at the next hearing.

Judgment reversed, with direction.

All the Justices concur.