Riggins v. State , 67 Ga. App. 309 ( 1942 )

1. On a plea of surprise and entrapment the State may impeach its own witness testifying harmfully to the State (Nathan v. State, 131 Ga. 48 (3), 61 S.E. 994; Rickerson v. State, 106 Ga. 391, 33 S.E. 639), and contradictorily to statements previously made by a witness who heard the previous statements, where it appears that such statements were made directly to the State's counsel or his assistant (Carter v. State, 17 Ga. App. 244, 86 S.E. 413; Luke v. Cannon, 4 Ga. App. 538, 62 S.E. 110), or to another who was directed by the relator to convey the statements to the State's counsel and they were so conveyed. Burns v. State, 20 Ga. App. 77 (2) (92 S.E. 548). In the instant case it was not sufficient to show that the alleged previous statements were made only "in the solicitor's office," without further showing that the statements were made to the solicitor or his assistant or to another who was directed to convey the statements to the State's counsel.

2. On a plea of surprise and entrapment by the State, and an attempt to show previous contradictory statements by the State's witness, it was error for the court to refuse to admit testimony of a grand juror, offered in rebuttal by the defendant, that the witness had testified before the grand jury to certain facts in effect substantiating the testimony of the witness on the trial, because of which the plea arose. See Wynes v. State, 182 Ga. 434 (3) (185 S.E. 711); Lowe v. State, 97 Ga. 792 (3) (25 S.E. 676).

3. It was harmful error for the court to admit, over timely objection of defendant, testimony that the witness, several days after the shooting, was told by the prosecutor that the defendant shot him.

4. It is unnecessary to pass on the general assignments of error. The court erred in overruling the motion for new trial.

Judgment reversed. MacIntyre, J., concurs. Broyles, C. J.,dissents.

DECIDED MAY 2, 1942.