Harrison v. Langston & Woodson , 100 Ga. 394 ( 1897 )

Little, Justice.

The official report states the facts.

In addition to the statutory grounds, the motion for new trial contains others, alleging that certain rulings of the count were error, for the commission of which this court is asked to reverse the judgment of the court below in refusing to grant the new trial asked. Inasmuch as the case-goes back to be tried again, for obvious reasons we refrain from expressing any opinion on those grounds which relate-to the evidence in the case.

1. The plaintiff in error complains that the court refused, to declare a mistrial on his motion, because one of the counsel of the plaintiff in the court below, in his argument to the jury on appeal in the superior court, stated to the jury that “the justice of the peace trying the case found in favor of theplaintiffs for the sum of sixty-seven dollars.” It cannot be questioned that, though a fact, this was an improper remark to make to the jury, which doubtless was the- result of' the zeal of counsel in the interest of his clients; but no matter from what cause it arose, it should not have been made-. If juries are to be informed of, and then influenced by, the-finding of the tribunal from which the appeal was taken, there would be little practical benefit for a party to take his-case to another court for a neiw and different trial, and would work -a reversal of the rule, that a trial on appeal is a de novo proceeding.

The remark having been made, the question whether a mistrial should be ordered as a consequence, will depend on the fact of its influence in shaping the verdict, or the prob- • ability of the jury having been influenced by it in considering the case. It appears by a note in the record, made by the court, that when the remark was made, the court at once - stopped the counsel and stated clearly and strongly to> the jury that the remark was out of order, and properly instructed the jury that it must not influence them, but that they must try the case on the evidence then before them, etc. "We are of the opinion that this prompt and decisive interposition by the court was sufficient to have corrected any effect which the remark of the counsel tended to have on the minds of the jurors, and the court did not err in refusing a new trial on this ground

2. The next error assigned is, that the court refused to continue ¡the case, on motion of movant, on account of the .absence of a material witness. The showing for continuance met the legal requirements, except that it appears that the witness was served with a subpoena to attend the trial in the justice’s court, and was notified of the appeal, but was not served with a subpoena to attend as a witness in the superior court. The plaintiff in error contends that, having been duly subpoenaed as a witness in the case in the justice’s court, notice of the fact of the appeal to the superior court was all that was necessary to compel his attendance as a witness at the trial in the latter court; and cites §5260 of the •Civil Code, as authority for that position. We differ with him in this view of the law. In order to compel the attendance of a witness by attachment, it must be shown that he has been served with the precept of the court (Civil Code, '§5263); and to entitle a party to a continuance on the ground of the absence of a material witness, it must be •shown, among other things, that the witness has been subpoenaed. Civil Code, §5129. It is true that §5260 supra provides that if there be an appeal or new trial, notice of the fact, without a new subpoena, shall be sufficient to require the attendance of the witness. The greater portion of this section was codified from the judiciary act of 1799 (see Cobb’s Digest, p. 276); and while that portion of the section providing that “if there be an appeal or new trial, notice of tiie fact, without a new subpoena, shall be sufficient to require the attendance of the witness,” seems to have been added and inserted by the codifiers as early -as 'the Code of 1863 (see Code of 1863, §3761), if further appears that at the time of the adoption of this provision into the- code, the judiciary act of 1799 provided for an appeal in the superior court from the verdict of a petit jury to a trial by a special jury in the same court. This provision so remained with respect to this sytem of appeal until the adoption of the constitution of 1868 (article 5, section 3,-para-graph 3; Code of 1873, §5091). It will be observed that in the section under review, just preceding the language •quoted above, it is provided that the witness so summoned shall attend the court from term to term until the case is tried. A new trial must always take place in the court in which the former trial was had; and in view of the language of the section, and of the law providing for appeals as it stood .at the time of the adoption of the provisions of this section, it is obvious that the provision for notice to the witness instead •of a new subpcena relates only to appeals or new trials in the .same court; and therefore as a basis for the continuance of a ■ease which is on appeal from a justice’s court to the superior court, for the absence of a witness, it must be shown that the witness has been subpoenaed to the latter court.

3. The court allowed plaintiff below to introduce, and •comment on before the jury, the pauper affidavit of the defendant in the appeal from the justice’s court, together with •a bond, given by him later to dissolve a garnishment growing •out of this case, as tending to impeach defendant as a witness in his own behalf. On January 2d, 1894, plaintiff in error entered an appeal from the justice’s court to the superior court, and filed the usual pauper affidavit, that, owing to his poverty, he was unable to pay the cost mid give the security required by law. On February 1st, 1894, he gave a bond, with security, dissolving a garnishment sued out by defendants in error, conditioned to pay to the said defendants in •error the judgment that should be rendered on said garnishment. "We do not think execution of the latter instrument can be used as proof of contradictory statements going to impeach the evidence given by plaintiff in error on the trial, lie was a witness and testified to certain facts. It is sought to impeach him, not by shoving that the witness had previously made statements contradictory of his testimony in the case, but that in January, 1894, he made an affidavit that he was unable to pay costs mid give a bond, and that thirty days later he did give a bond with security in the • case; hence the inference to be drawn by the jury is that the affidavit was untrue, and being so, the witness is impeached. By the second ground of the amended motion for new trial (not definitely corrected by the court), such evidence was admitted and allowed to be commented on for the purpose of impeaching the witness. When a witness is impeached by either of the methods ¡Jointed out in the code, his evidence is. to be rejected, unless corroborated, and if by this evidence-contradictory statements are shown which the jury believed, impeached the evidence of the witness, his evidence might he laid aside as that of an impeached witness. If the evidence was admissible, it must he on the ground that it would show or tend to show statements made by the witness contradictory of his evidence in the case, or such acts inconsistent with tíre 'truthfulness of the witness as would affect his credibility. Would the evidence introduced for this purpose-have such effect? We think not. The witness, in the affidavit introduced, swore that he was unable to do the tw-o things required by the statute on appeals in forma pauperis; that is, he was unable to pay the cost mid give the security required. If he was unable to pay the cost, but was able to give the security, or conversely if he could give the security but was unable to pay the cost, the ability to- do either did not render the affidavit untrue, and evidence that subsequent to making the affidavit he did in fact do one of these things, does not tend to impeach him; it would at least require evidence of his ability to do both. We are of the opinion that the evidence was not admissible for this purpose.

Judgment reversed.

All the Justices concurring.