Silva v. State ( 1973 )

ROBERTS, Judge

(concurring).

I concur in the result. However, I do so only for the reason that the appellant failed to develop, at the hearing on his motion for new trial, what the testimony of Officer Doyal would have been had he been recalled.

It is absolutely clear that the trial court erred in failing to grant the necessary additional time required to recall the witness.

In the instant case, the witness was allowed to leave the court without the court’s consent. Nor was any effort made in order to determine, before the witness took his leave, whether either the parties desired to recall him. This was entirely improper. Although allowing a witness to be recalled is a matter within the sound discretion of the court, nevertheless, in any matter as important as this, that discretion must be soundly exercised, in order to insure that each party has the fullest opportunity to present his case. In order to have that opportunity, the parties must be able to rely upon the presence of the witnesses, and must be assured that witnesses will not be allowed to come and go as they please.

For the reasons stated, I concur.

ONION, P. J., joins in this concurrence.