Campbell v. State , 155 Ga. 127 ( 1923 )

Per Curiam.

The trial judge permitted a witness for the State, over appropriate objection of the defendant, to testify to what a witness, since deceased, swore at the inquest held by the coroner over the body of the deceased, the defendant not being present at such inquest and not having had an opportunity to cross-examine such deceased witness at the inquest trial. The evidence of the deceased witness tended to show that the defendant stopped in front of the door of a residence and called for a drink of water. One Pool, who was standing in the door, said to the defendant, “You are no stranger; come in and get it.” As the defendant came into the door of the house and passed around near the middle of the floor, he turned and said, “ You damned niggers don’t believe I’ll shoot, but I am going to shoot,” and then drew his pistol and shot the deceased as he was getting up, and from which wound he died. This evidence was admitted just before the court took a recess for dinner. After the court reconvened, about two hours later, his attention having been called to the fact that the defendant was not present at the inquest trial and had no opportunity to cross-examine the deceased witness who was sworn at the inquest, the court ruled out such evidence, but failed to instruct the jury that they should disregard the same in arriving at a verdict in the case. Held, that the court erred in admitting such evidence; and the error was not cured by afterwards ruling out the evidence, when m ruling it out the court failed to distinctly instruct the jury that they should disregard the evidence in reaching a verdict in the case.

Judgment reversed.

All the Justices concur, except Bech, P. J., and Bines, J., dissenting. Porter & Mebane, for plaintiff in error. George M. Napier, attorney-general, E. S. Taylor, solicitor-general, Seward M. Smith, asst, atty.-gen., and J. F. Kelly, contra.