Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5260, former Code 1933, § 38-1501, Ga. L. 1966, p. 502, § 1, and former O.C.G.A. §§ 24-10-20 and24-10-21 are included in the annotations for this Code section.

Constitutionality.

- Former statute was not unconstitutional as applied to a habeas corpus proceeding. Hooten v. State, 245 Ga. 250, 264 S.E.2d 192, cert. denied, 446 U.S. 942, 100 S. Ct. 2168, 64 L. Ed. 2d 797 (1980) (decided under Ga. L. 1966, p. 502, § 1).

Use of word "shall" in the former statute indicated that the subpoena must be issued by the clerk, signed by the clerk, and under the seal of the court; the word "shall" was in its ordinary signification a word of command. State v. Brantley, 147 Ga. App. 569, 249 S.E.2d 365 (1978) (decided under former Code 1933, § 38-1501).

Signature by clerk.

- Subpoena commanding the presence of a person in court as a witness is a judicial writ, and to be valid must, when there was a clerk, be signed and issued by that officer. Horton v. State, 112 Ga. 27, 37 S.E. 100 (1900) (decided under former Civil Code 1895, § 5260).

Signature by attorney.

- Subpoena to which the attorney for a defendant has signed the name of the clerk, under a general direction from that officer to "prepare" the subpoenas in the case, was not valid. Horton v. State, 112 Ga. 27, 37 S.E. 100 (1900) (decided under former Civil Code 1895, § 5260).

Defendant's responsibility to ensure presence of witnesses.

- When defendant elected to represent oneself it was the defendant's responsibility, not the trial court's, to ensure the presence of witnesses by the issuance of subpoenas. Kegler v. State, 267 Ga. 147, 475 S.E.2d 593 (1996) (decided under former O.C.G.A. § 24-10-20).

As the defendant, who was proceeding pro se during a criminal trial, failed to request issuance of subpoenas pursuant to former O.C.G.A. §§ 24-10-20(b) and24-10-21 (see now O.C.G.A. §§ 24-13-21 and24-13-22), there was no violation of the right to compulsory process. Sheppard v. State, 297 Ga. App. 806, 678 S.E.2d 509 (2009), cert. denied, No. S09C1575, 2009 Ga. LEXIS 795 (Ga. 2009) (decided under former O.C.G.A. §§ 24-10-20 and24-10-21).

Expenses.

- Former statute did not contemplate that the public should bear the expense of bringing witnesses into court because the residents of other counties could be examined by depositions (oral examination or written interrogatories) if the defendant so desired. Neal v. Smith, 226 Ga. 96, 172 S.E.2d 684 (1970) (decided under former Ga. L. 1966, p. 502, § 1).

Habeas corpus proceeding.

- Sixth Amendment guarantee to the accused of compulsory process to obtain the testimony of witnesses had no application in the context of habeas corpus proceedings, which were civil in nature. Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123, cert. denied, 447 U.S. 927, 100 S. Ct. 3023, 65 L. Ed. 2d 1121 (1980) (decided under former Ga. L. 1966, p. 502, § 1).

Argument to jury.

- When a witness was not amendable to subpoena, the witness's failure to testify in person was not a proper subject matter of argument by counsel. Floyd v. Colonial Stores, Inc., 121 Ga. App. 852, 176 S.E.2d 111 (1970) (decided under former Ga. L. 1966, p. 502, § 1).

Charge to jury that any accused had a right to subpoena any witnesses to testify that the accused wishes, but that the accused had no burden to produce any witnesses, and that the jury should arrive at a decision from the evidence presented without speculating about other matters, was without error. Miller v. State, 155 Ga. App. 54, 270 S.E.2d 466 (1980) (decided under former Ga. L. 1966, p. 502, § 1).

Trial court did not impermissibly shift the burden of proof when the court charged the jury that defendant had the right to subpoena witnesses. The jury charge was an accurate statement of the law and provided no ground for reversal. Green v. State, 298 Ga. App. 17, 679 S.E.2d 348 (2009) (decided under former O.C.G.A. § 24-10-21).

Criminal defendant's right to compulsory process.

- Trial court erred in making a determination that a prospective witness was incompetent to testify based on ex parte statements made by the administrator of the institution where the prospective witness was confined. When this error is not harmless beyond a reasonable doubt, if it is determined that one was competent, then defendant's right to compulsory process was abridged and a new trial must be ordered. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981) (decided under former O.C.G.A. § 24-10-21).

Determination of whether witness is necessary and material.

- Court of appeals erred in ruling that the trial court did not abuse the court's discretion in denying the defendant's motion under the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), to obtain evidence possessed by a witness in Kentucky because the proper statute was not applied since the court of appeals stated that the defendant was required to show that the out-of-state witness was necessary and material to the case; whether the witness was "necessary and material" was one of the determinations that must be made under the Act, former O.C.G.A. § 24-10-92(b) (see now O.C.G.A. § 24-13-92), by the judge in the county where the out-of-state witness was located, and the Georgia trial court evaluated the request under the Act, former O.C.G.A. § 24-10-94 (see now O.C.G.A. § 24-13-94), and must determine only whether the out-of-state witness was a "material witness" in the Georgia criminal prosecution and whether the court should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia. Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (decided under former O.C.G.A. § 24-10-21).

Attendance by agent of out-of-state corporation.

- Court of appeals erred when the court concluded that a request under the former Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), that an out-of-state corporation be required to produce purportedly material evidence in the corporation's possession had to be accompanied by the identification as a material witness of the corporate agent through which the corporation was to act because if the certificate of materiality was issued by the Georgia court, it was for the Kentucky corporation to identify the human agent through whom the corporation would act, perhaps in conjunction with the hearing that would be held in Kentucky upon receipt of the Georgia certificate of materiality. Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011) (decided under former O.C.G.A. § 24-10-21).

Prior deposition.

- Trial court's sua sponte determination that the existence of a prior deposition rendered the presence of a material witness subpoenaed by the plaintiff superfluous and that, hence, that witness would be excused, but no continuance would be granted, denied the plaintiff the right to present plaintiff's case to the jury in the manner in which plaintiff chose. Ricketson v. Blair, 171 Ga. App. 714, 320 S.E.2d 788 (1984) (decided under former O.C.G.A. § 24-10-21).

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, §§ 6, 7.

C.J.S.

- 98 C.J.S. (Rev), Witnesses, §§ 6, 26 et seq.

ALR.

- Subpoenaing unnecessary witnesses as contempt, 37 A.L.R. 1113.

Power of court to control evidence or witnesses going before grand jury, 52 A.L.R.3d 1316.