Merneigh v. State

181 S.E.2d 498, 123 Ga. App. 485, 1971 Ga. App. LEXIS 1272

• Court: Court of Appeals of Georgia
• Decided: March 10, 1971
• Docket: 45835
• Status: Published

Opinions

Jordan, Presiding Judge.

This appeal is from the overruling of motions for new trial after conviction and sentence for the misdemeanor offenses of false report of a crime and simple battery. Held:

1. This court is by mandate of the Constitution of Georgia bound by the precedents established by the Supreme Court of Georgia. Constitution of Georgia, Art. VI, Sec. II, Par. VUI (Code Ann. §2-3708). In view of these precedents, despite persuasive authority to the contrary, where the issue of alibi is present in a case it is not error for any reason argued and insisted upon to instruct the jury that "alibi as a defense should be established to the reasonable satisfaction of the jury, and not beyond a reasonable doubt.” See and compare Young v. State, 225 Ga. 255 (167 SE2d 586); Chaffin v. State, 225 Ga. 602 (170 SE2d 426); Thornton v. State, 226 Ga. 837 (178 SE2d 193); Parham v. State, 120 Ga. App. 723 (171 SE2d 911); Pritchard v. State, 122 Ga. App. 780 (178 SE2d 808); Smith v. Smith, and Shoemake v. Whitlock, Civil Actions Nos. 14304, 14305, United States District Court, Northern District of Georgia, Atlanta Division, opinion dated December 23, 1970.

2. The third enumeration asserts that the trial court "erred in permitting appellant’s wife to invoke the privilege of not testifying against appellant in the presence of the jury after the State was informed she would do so.” Pretermitting the question of whether timely and proper objection was made followed by a motion for mistrial so as to invoke a ruling by the court, we see no harmful or reversible error. The presumption is that a witness is competent to testify, and the burden is on the objecting party to show incompetency. Adams v. Barrett, 3 Ga. 277 (3); Goodson v. State, 162 Ga. 178 (132 SE 899). A witness offered must be permitted to testify unless there is an objection. Dowdy v. Watson & Lewis, 115 Ga. 42 (41 SE 266).

Submitted January 7, 1971 Decided March 10, 1971 Rehearing denied March 19, 1971.

As Judge Panned pointed out in the recent case of Gates v. State, 120 Ga. App. 518 (171 SE2d 375), since the 1957 amendment to Code §38-1604 (Ga. L. 1957, p. 53) a wife is now a competent but not a compellable witness in a criminal proceeding for or against her husband, whereas prior to the amendment she was neither competent nor compellable in such a situation. Being a competent witness the State had the right to cad her and require her to testify unless she then and there claimed her privilege not to do so. Though the court was informed that she had claimed this privilege at a previous trial and would do so again, she might have changed her mind at any time before taking the stand. See James v. State, 223 Ga. 677, 683 (157 SE2d 471) and Kellar v. State, 226 Ga. 432 (1) (175 SE2d 654).

We know of no binding authority which requires the reversal of a criminal case merely because an otherwise competent witness has invoked statutory or constitutional immunities in the presence of the jury.

3. No error appearing for any other reason, the judgment is affirmed.

Judgment affirmed.

Eberhardt, J., concurs. Hall, P. J., Panned and Quillian, JJ., concur specially. Bed, C. J., Deen, Whitman and Evans, JJ., dissent. Glenn Zell, for appellant. Lewis R. Slaton, District Attorney, Stephen A. Land, Tony H. Hight, John A. Schupp, for appellee.