Smith v. State , 225 Ga. 328 ( 1969 )

Duckworth, Chief Justice,

dissenting. Irrespective of the bestial manner of the killing, or the strong evidence of the defendant’s guilt, he is entitled to every right conferred upon him by law. This court did not write Code § 38-1705. Nor can this court amend or repeal it. But every Justice is bound by oath to accord every person, including this defendant, the valuable right conferred by that law. It provides as follows: “The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him.” To those not experienced in the trial of cases this right might not appear important, but experienced lawyers know that one of the most important parts of a trial in discovering the truth and smashing lies is an intelligent cross examination. The legislature considered it important enough to justify the enactment of Code § 38-1705 which expressly and without any qualification whatever vests in every party this right to cross examine every witness called against him. Courts have no right to abridge or deny this right for any reason. It can be denied only by defying the law. This means that no matter what the causes — whether sickness, the Fifth Amendment, or what — this right must never be denied. It is no proper function of judges to dream up hypothetical cases where obeying this rule might cause a case to be lost. I say to them that the legislature alone could add exceptions, but it has not.

Nor has this legally invested right in the remotest degree been altered by arguing that in Pinkard v. State, 30 Ga. 757; Young v. State, 65 Ga. 525; and McElhannon v. State, 99 Ga. 672, all supra, the cross examination related to a part of what had been testified by the witness on direct examination. In each of those cases because cross examination was denied, it was held that the direct testimony should be ruled out. Those cases sustain my position to the extent they held denial of cross examination required exclusion of the direct testimony of the witnesses. In none of them was it held or intimated that a denial of cross examination on any relevant matter would not require the exclusion of the direct testimony. In each of those cases the real purpose of cross examination was to test the correctness of the witness’s direct testimony which involved the credibility, the bias and interest of the witness. This was precisely the purpose of the cross examination in this case. Can this court be “side-tracked” into such frivolities while called upon to decide if one has been lawfully sent to the electric chair? Every decision I make on that question of life or death is made with fear and trembling, but I could never make such a momentous decision, knowing I had sanctioned a denial of the condemned person’s right given him by our lawmakers to thoroughly and siftingly cross examine a State’s main witness irrespective of the reason for denying this vital right.

Look at the actual condition of this case. This woman, the State’s prime witness, is shown to have been living unlawfully with the accused. She had also, without doubt, had relations with the deceased, although she admitted only to having dates with him and refused to answer when asked directly about sexual relations with him. Here she was testifying to a bestial slaying when she had seduced the deceased to meet her. Then when time to discover liars, reveal motives and test credibility came, and she was asked on cross examination if she had ever had sexual intercourse with the deceased, she told counsel that this was none of his business and hid behind the Fifth Amendment. She admitted to being the common law wife of at least two other men and having sexual relations with another. Was there fear of incrimination when the evidence had shown her a criminal in many respects? Or was she deliberately hiding valuable information surrounding this crime? Besides she was indicted for the same killing. A lawyer would be naive indeed to think a probing cross examination would not ultimately have shown she was a liar, and perhaps a murderess. To say this would not benefit the accused is to reveal an ignorance in the trial of cases. The prevented cross examination, “thorough and sifting,” simply cut the heart out of the defendant. While the assigned error here is the ruling denying the motion to exclude all the testimony of this witness and there were other means of protecting the right to cross examine, yet since the court took none of the other actions Code § 38-1705 demanded that the motion to exclude be sustained. In Gale v. State, 135 Ga. 351 (69 SE 537), when the witness became ill and thus defeated cross examination, the trial judge offered to declare a mistrial, and the accused rejected a mistrial, it was held not error to refuse to rule out the direct testimony of the witness involved. Thus this court recognized the binding effect of Code § 38-1705, and since the trial court had proposed an action which would have completely protected the right of the accused under Code § 38-1705, this court refused to reverse solely because the trial court failed to do one of the two acts of protecting the right to cross examine when the court’s offer to declare a mistrial which would have completely and effectively protected the right under Code § 38-1705 was rejected. In that opinion Justice Lumpkin quoted extensively from Wigmore, including the following: “It seems harsh measure to strike out all that has been obtained on direct examination. Nevertheless, principle requires in strictness nothing less.” He quoted from Sturm v. Atlantic Mutual Ins. Co., 63 N. Y. 77, the following: “It may be taken as the rule, that where a party is deprived of the benefit of the cross examination of a witness, by the acts of the opposite party, or by the refusal to testify or other misconduct of the witness, or by any means other than the act of God, the act of the party himself, or some cause to which he has assented, that the testimony given on the examination-in-chief may not be read.” At page 352 Justice Lumpkin said: “Undoubtedly the right of cross-examination is a valuable right; and if it be improperly denied, a reversal must result.” The statements and citations of authority in that opinion sustain my position here.

The lesson here for discerning and conscientious judges is that a court must offer to take some action that will preserve the right under Code § 38-1705, but when offers to thus act are rejected, the court is not required to take another action. There, strategy obviously was employed — an offer to take action that renders the accused still possessed of his full rights, under Code § 38-1705, was enough to justify denying him an alternative right, all of which would have preserved his rights under Code § 38-1705. All that one can claim under this law is the right to cross examine every witness called against him. When he is denied this right, a mistrial would protect his right. If he declines that he must be held to have waived the right. But where as here, he was not offered an alternative and asks that the testimony of the witness who testified against him on direct examination be ruled out, he was entitled as a matter of law to have the witness’s testimony excluded. “It is erroneous to abridge the right of cross-examination, and to do so is generally cause for the grant of a new trial. Barnwell v. Hannegan, 105 Ga. 396 (31 SE 116); Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805 (56 SE 1006, 9 LRA (NS) 769).” Becker v. Donaldson, 133 Ga. 864, 869 (67 SE 92). See Rabun v. Wynn, 209 Ga. 80 (5) (70 SE2d 745), to the same effect. The entire record of the Supreme Court sustains this vital rule. Bishop v. Bishop, 157 Ga. 408, cited by the majority, is not even relevant to this question. In that case, the plaintiff, as a witness for himself, refused to answer a question on cross examination, and the court dismissed his case. This court reversed. That decision did not raise the question of a denial of cross examination, but it merely held a witness could invoke the Fifth Amendment and his entire case could not be dismissed when he did so. To say as the majority do that this case fits the instant one is to show an utter misconception.

Any experienced lawyer knows that the cross examination tended to discredit the witness and might well have led to an exposure of her own guilt because of jealousy of the murdered. Hell has no “fury like a woman scorned.” “The state of the witness’s feeling to the parties, and his relationship, may always be proved for the consideration of the jury.” Code § 38-1712. Particularly is this true when the witness is the defendant’s paramour. Perdue v. State, 126 Ga. 112 (54 SE 820); Lundy v. State, 144 Ga. 833 (1) (88 SE 209). Financial or blood relationship may affect the testimony of the witness and evidence thereof is admissible when relevant to the credibility of the witness. Futch v. State, 90 Ga. 472 (16 SE 102); Myers v. State, 97 Ga. 76 (25 SE 252). How could anyone dare say the relationship of this woman with the slain man was irrelevant to her credibility? Had she had intercourse with him? Was it because of love, and was she disappointed to learn he did not care for her but intended to marry another? All this was potentially revealable had the cross examination been permitted to continue, “thorough and sifting,” as Code § 38-1705 gave the accused the right to do. What kind of warped scales of justice would allow her testimony in chief to remain against this accused while, sheltered by the Fifth Amendment, she refused to answer questions on cross examination that tended to and might well have exposed her entire testimony as the pratings of a disappointed lover, and even a murderess? Her direct testimony put her bias and credibility on the line. I dare say the questions she refused to answer will by the majority be conceded to have been relevant to this subject. If she could be shown to be unworthy of belief, this touched all of her testimony, and the jury might well have disbelieved her. But when she took refuge behind the Fifth Amendment, which she had the right to do, the door was closed insofar as putting her testimony to the test of the white light of truth. Even a layman, and almost any child, would know this effectively shielded her testimony from the test of credibility, and hence it was unfair.

The sentence this defendant faces, if carried out, means he must die in the electric chair mainly because of the testimony of this witness who by resort to the Fifth Amendment privilege, failed and refused to give answers to all these questions. I would never consent to such. The probing cross examination pointed to the very “guts” of this case, and a defendant cannot under Code § 38-1705, be denied this valuable right. If he dies let it be legal.

In light of the foregoing, I have no alternative but to dissent from the judgment of affirmance.