Smith v. State

41 S.E.2d 179, 74 Ga. App. 685, 1947 Ga. App. LEXIS 669

• Court: Court of Appeals of Georgia
• Decided: January 15, 1947
• Docket: 31510.
• Status: Published

Opinion

Gardner, J.

The defendant was convicted of assault with intent to murder. He filed a motion for a new trial on the general grounds and one special ground. This motion was overruled. Since the case is reversed on the one special ground, we will not discuss the general grounds.

The State, after having introduced a witness, sought to impeach him under the Code, § 38-1801, which reads as follows: “A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by the witness by a previous contradictory statement.” The solicitor-general stated to the court that he had been entrapped by the witness. The court, over proper objections of counsel for the defendant, permitted the solicitor-general to impeach the witness whom he had voluntarily called, by propounding leading questions to the effect that the witness had made previous contradictory statements to Sheriff Potts. It nowhere appears that the witness had ever made any contradictory .statements to the solicitor-general, or to any other person to be conveyed to the solicitor-general. Therefore it follows, under the decisions of this court, that the case must be reversed on this ground. Carter v. State, 17 Ga. App. 244 (86 S. E. 413); Burns v. State, 20 Ga. App. 77 (2) (92 S. E. 548); Riggins v. State, 67 Ga. App. 309 (1) (20 S. E. 2d, 95) ; Allen v. State, 71 Ga. App. 517 (1) (31 S. E. 2d, 107).

Myer Goldberg, William, T. Atlcinson Jr., for plaintiff in error. L. M. Wyatt, Solicitor-General, contra.

Judgment reversed.

Broyles, C. J., amd MacIntyre, J., concur.