O.C.G.A. § 17-7-192 (2019)

Annotations

Cross references. - Uniform Act to Secure the Attendance of Witnesses from Without the State, § 24-13-90 et seq.

JUDICIAL DECISIONS O.C.G.A. § 17-7-192 does not require subpoena issued by clerk of court in addition to an order of the superior court commanding the presence of an inmate witness. Grant v. State, 212 Ga. App. 565, 442 S.E.2d 899 (1994). Abuse of discretion in denial of motion. - Denial of a motion for continuance on the ground of an absent witness lies within the discretion of the trial court and unless manifestly abused, the denial thereof will not be disturbed. Wellons v. State, 144 Ga. App. 218, 240 S.E.2d 768 (1977). Motion for continuance should state how attendance to be procured. - On the hearing of a motion for a continuance, based upon the absence of a material witness of the defense, when the court is authorized to find that the witness was beyond the jurisdiction of the court, that the witness’s absence was not temporary, and that the court was powerless to force the witness to attend, although the movant states that the movant expected

to have the witness present at the next term of the court, if possible, in these circumstances the motion should go further and state the means whereby the movant expects to procure the witness’s attendance, as that the witness had promised to attend, or that the movant has some other ground for the movant’s expectation. Wright v. State, 71 Ga. App. 346, 30 S.E.2d 839 (1944). When continuance because of absence of defense witness unavailable. - When, after being committed by a magistrate, the defendant fails to exercise the defendant’s right to subpoena a defense witness who is then available for service, and attempts to serve the witness after the defendant’s indictment one month later, at which time the witness has left the county, the defendant has not employed means for securing the witness which were within the defendant’s power to employ and therefore the defendant is not entitled to a continuance because of the absence of such witness. Coker v.

State, 87 Ga. App. 411, 74 S.E.2d 12 (1953). Requirements for continuance when witnesses in county. - As to witnesses residing in the county, the accused must, in order to make a showing complete, either show that the accused has had the witnesses subpoenaed under the provisions of the preceding sections, or else that there has been a commitment trial. Chatfield v. State, 10 Ga. App. 40, 72 S.E. 513 (1911). Proof of materiality of testimony may be required. Hood v. State, 93 Ga. 168, 18 S.E. 553 (1893). Applicability to procedure to secure attendance of out-of-state witnesses. - Provisions of O.C.G.A. § 17-7-192, which deal with the accused’s right to obtain subpoenas for such absent witnesses as the accused may deem mate-

rial for the accused’s defense, did not apply to the procedure set forth in the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. T. 24, C. 10, Art. 5 (see O.C.G.A. § 24-13-90 et seq.). Farrell v. State, 160 Ga. App. 321, 287 S.E.2d 318 (1981). Cited in Carter v. State, 11 Ga. App. 141, 74 S.E. 846 (1912); West v. State, 68 Ga. App. 56, 22 S.E.2d 115 (1942); Parrish v. State, 125 Ga. App. 97, 186 S.E.2d 541 (1971); Reid v. State, 129 Ga. App. 657, 200 S.E.2d 454 (1973); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Gilmore v. State, 154 Ga. App. 429, 268 S.E.2d 693 (1980); Cave v. State, 171 Ga. App. 22, 318 S.E.2d 689 (1984); Sosebee v. State, 190 Ga. App. 746, 380 S.E.2d 464 (1989).

RESEARCH REFERENCES Am. Jur. 2d. - 17 Am. Jur. 2d, Continuance, §§ 10 et seq., 54 et seq. 21 Am. Jur. 2d, Criminal Law, §§ 293 et seq., 381. C.J.S. - 17 C.J.S., Continuances, §§ 35, 36. 22 C.J.S., Criminal Procedure and Rights of the Accused, § 895 et seq.

ALR. - Right of accused to continuance because of absence of witness who is fugitive from justice, 42 A.L.R.2d 1229.

ARTICLE 9 DISCOVERY Editor’s notes. - For current provisions as to discovery in general, see O.C.G.A. § 17-16-1 et seq.

17-7-210, 17-7-211. Reserved. Repealed by Ga. L. 1994, p. 1895, § 1, effective January 1, 1995. Editor’s notes. - These Code sections were based on Code 1933, §§ 27-1302 and

27-1303, enacted by Ga. L. 1980, p. 1388, § 2.

CHAPTER 8 TRIAL Sec.

Article 1 General Provisions Sec.

Cases to be called in order in which they stand on docket; exceptions; preferred scheduling when alleged victim is disabled adult or elder person. Indictments and special presentments to be presented to jury; exception for settlements between prosecutor and defendant which are approved by court. Entry of nolle prosequi. Procedure for trial of jointly indicted defendants; right of defendants to testify for or against one another; order of separate trials; acquittal or conviction where offense requires joint action or concurrence; number of strikes allowed defendants. Recordation of testimony in felony cases; entering testimony on minutes of court where guilty verdict found; preparation of transcript where death sentence imposed; preparation of transcript where mistrial results in felony case. Authority of municipal court to seal criminal records.

Article 2

Continuances

Showing of due diligence required of applicants for continuances generally. When showing for continuance required of state. Consideration of motion for continuance by court generally; allowance of counter-showing to motion. Absence of party as grounds for granting continuance.

Absence or illness of counsel as grounds for granting continuance. Absence of witness as grounds for granting continuance. Party or party’s attorney in attendance at General Assembly as grounds for granting continuance. Attorney General in attendance at General Assembly as grounds for granting continuance. Witness in attendance at General Assembly as grounds for granting continuance. Party or party’s counsel in attendance at meeting of Board of Regents of the University System of Georgia as grounds for granting continuance. Party or party’s counsel in attendance at meeting of Board of Human Services or Board of Behavioral Health and Developmental Disabilities as grounds for granting continuance. Party, leading attorney, or material witness in attendance on active duty as member of National Guard or component of armed forces of the United States as grounds for granting continuance; setting bail in certain cases. Effect of admission by opposing party of facts to be proved upon allowance of continuance. Granting of continuances where indictment found or accusation made; continuance where material witness unavailable; continuances required by principles of justice; granting of continuance where postponement possible to later date in term. Granting of continuances in

Sec.

cases returned by appellate court for trial. Effect of continuance by defendant upon trial of codefendants. Entry of date of continuance upon docket of court; announcement of continuance in open court. Duration of continuance. Case not reached at trial term continued.

Sec.

Article 3

Testimony of child less than 17 years old outside physical presence of accused. Writing out and reading of charge to jury; filing of charge; furnishing of copies of charge. Expression or intimation of opinion by judge as to matters proved or guilt of accused. Objections to jury charges prior to the jury retiring to deliberate; failure to raise objections. Article 4

Conduct of Proceedings

Courts in which trials of inmates escaping from correctional institutions to take place; admissibility of records pertaining to former trials of such inmates; testimony of other inmates. Admissibility of testimony of inmates in trials for crime of mutiny. Oath to be administered to witnesses. Exclusion of public from courtroom when evidence vulgar or obscene. Persons in courtroom when person under age of 16 testifies concerning sexual offense.

Cross references. - Guarantee of trial by jury, Ga. Const. 1983, Art. I, Sec. I, Para. XI. Criminal penalties for unlawfully influencing jurors, influencing witnesses, tampering with evidence, and other acts, § 16-10-90 et seq. Trial calendar, Uniform State Court Rules, Rule 8.3.

Conduct and Argument of Counsel

Number of counsel permitted to argue case. Order of argument after evidence presented. Misdemeanors and cases arising from inferior judicatories; time limits on closing argument. Noncapital and capital felony cases; time limits on closing argument. Allowance of additional time for closing argument. Improper statements by counsel. Argument to or in front of jury as to possibility of clemency.

Law reviews. - For annual survey article discussing developments in criminal law, see 52 Mercer L. Rev. 167 (2000). U.S. Code. - Trials, Federal Rules of Criminal Procedure, Rules 23-31.

RESEARCH REFERENCES ALR. - Criminal trial of deaf, mute, or blind person, 80 A.L.R.2d 1084. When does jeopardy attach in a nonjury trial, 49 A.L.R.3d 1039. Jury’s discussion of parole law as ground for reversal or new trial, 21 A.L.R.4th 420.

Propriety and effect of jurors’ discussion of evidence among themselves before final submission of criminal case, 21 A.L.R.4th 444. Competency of nonexpert witness to testify, in criminal case, based upon personal observation, as to whether person

was under the influence of drugs, 21 A.L.R.4th 905. Validity and efficacy of minor’s waiver of right to counsel - modern cases, 25 A.L.R.4th 1072. Impeachment of defendant in criminal case by showing defendant’s prearrest silence - state cases, 35 A.L.R.4th 731. Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury, 37 A.L.R.4th 304. Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170. Exclusion of public from state criminal trial in order to avoid intimidation of witness, 55 A.L.R.4th 1196. Closed-circuit television witness examination, 61 A.L.R.4th 1155.

Disqualification from criminal proceeding of trial judge who earlier presided over disposition of case of coparticipant, 72 A.L.R.4th 651. Adverse presumption or inference based on party’s failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694. Adverse presumption or inference based on party’s failure to produce or examine friend - modern cases, 79 A.L.R.4th 779. Propriety of substituting juror in bifurcated state trial after end of first phase and before second phase is given to jury, 89 A.L.R.4th 423. Actions by state official involving defendant as constituting ‘‘outrageous’’ conduct violating due process guaranties, 18 A.L.R.5th 1.

ARTICLE 1 GENERAL PROVISIONS Cross references. - Criminal trial calendar, Uniform Superior Court Rules, Rule 32.