Teat v. State

353 S.E.2d 535, 181 Ga. App. 735, 1987 Ga. App. LEXIS 2575

• Court: Court of Appeals of Georgia
• Decided: January 14, 1987
• Docket: 73159
• Status: Published

Opinions

Sognier, Judge.

Appellant was convicted of driving under the influence of alcohol and he appeals. In his sole enumeration of error appellant contends the trial court abused its discretion by denying his request for a continuance pursuant to OCGA § 17-8-25, based on the absence of a subpoenaed witness who was the sole witness for the defense.

The witness was subpoenaed and appeared in court on January 21, 1986. The case was continued on that date at the request of the State because one of its witnesses was absent, and the case was rescheduled for February 13,1986. The subpoenaed witness was present on that date also, but for reasons which do not appear in the record, a mistrial was declared. The witness was contacted by appellant the day before the retrial of the instant case and was advised that his presence in court was required the next day. The witness stated he would be present in court, but when appellant drove by on the morning of trial to pick up the witness, he had gone to work in another city and was not available for trial. Appellant requested a continuance, stating that the witness would testify that appellant had only consumed three or four beers on the night of his arrest. Appellant’s counsel also stated that after the mistrial was declared in the first trial, “the witness was excused.” The trial court denied appellant’s request for a continuance on the ground that the witness was no longer under subpoena and the court had no authority to compel his attendance in court. Appellant contends this ruling was error.

There is nothing in the record to indicate who excused the witness after the mistrial, appellant or the court, and if the latter, to indicate whether the court completely excused the witness from the full power of the subpoena, which otherwise would generally extend from term to term, OCGA § 17-7-191; Brady v. State, 120 Ga. 181 (47 SE 535) (1904), or whether it was a temporary “that will do for now” dismissal. Further, it does not affirmatively appear in the record whether or not the witness received instructions from the court to return at a later date. Considering the sparsity of the record, it cannot be inferred from the brief statement made by appellant’s counsel that when appellant’s witness was excused, the subpoena’s effectiveness was necessarily terminated completely.

Appellant is a criminal defendant who apparently through no fault of his own was denied the right to present a witness in his own behalf. This witness was the only corroboration for appellant’s testimony and under such circumstances the absence of the witness’ testimony cannot be called harmless. The record does not reflect the reason for the mistrial, and does not reflect whether or not the witness testified at that trial. Appellant met the requirements of OCGA § 17-8-25 for granting a continuance due to the absence of a witness and from the record before us, we cannot conclude that the court lost its authority to compel the attendance of appellant’s witness and thus, justifiably denied appellant’s request for a continuance. This is particularly true where, as here, the court had previously granted a continuance to the State due to the absence of one of its essential witnesses. Thus, in observance of that fundamental fairness we deem essential to our concept of justice (see Lisenba v. Cal., 314 U. S. 219, 236 (12) (62 SC 280, 86 LE 166)), we find it was error to deny appellant’s request for a continuance.

Judgment reversed.

Birdsong, C. J., Deen, P. J., Carley, Ben-ham and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., and Pope, J., dissent.