Whitley v. State

223 S.E.2d 17, 137 Ga. App. 68, 1975 Ga. App. LEXIS 1205

• Court: Court of Appeals of Georgia
• Decided: November 25, 1975
• Docket: 51360
• Status: Published

Opinions

Stolz, Judge.

The defendants, Betty Whitley and Frank Miley, appeal from their conviction for robbery and the sentences entered thereon.

1. Appellants enumerate as error the trial court judge’s refusal to allow counsel for defendants to question the state’s witness about his lack of regard for the truth and consequent tendency to lie. While every defendant has the right to a thorough and sifting cross examination of adverse witnesses, Code Ann. § 38-1705, this right is not unlimited. "It shall be the right of a witness to be examined only as to relevant matter; and to be protected from improper questions and from harsh or insulting demeanor.” Code Ann. § 38-1704. Consequently, the trial judge has discretion to control the scope and manner of cross examination and this discretion will not be curtailed absent some clear abuse. Wanzer v. State, 232 Ga. 523 (207 SE2d 466); Davis v. State, 230 Ga. 902 (199 SE2d 779); Geiger v. State, 129 Ga. App. 488 (199 SE2d 861). No such abuse appears in the record before us. Enumerations of error 1 and 2 are without merit.

Submitted September 30, 1975 Decided November 25, 1975 Rehearing denied December 12, 1975. Jack Dorsey, for appellants.

2. Appellants cite as further error the admission in evidence of the following alleged hearsay: ". . .Detective Brannon who had the field glasses said they are getting his wallet.” The record shows that this statement was made by a member of the decoy squad, who testified that he and Detective Brannon were watching the incident in question. Brannon was using binoculars and, while looking through them, he exclaimed that the defendants had the victim’s wallet. "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of res gestae.” Code Ann. § 38-305. This statement, which was made by a witness to the incident, and was not self-serving, but prompted by the nature of the events which were then occurring, was admissible, in the judge’s discretion, as part of the res gestae. See Haralson v. State, 234 Ga. 406 (216 SE2d 304); Durham v. State, 129 Ga. App. 5 (198 SE2d 387). The third enumeration of error is also without merit.

Judgment affirmed.

Bell, C. J., Deen, P. J., Quillian, Clark and Marshall, JJ., concur. Pannell, P. J., Evans and Webb, JJ., dissent. Lewis R. Slaton, District Attorney, Joseph Drolet, Assistant District Attorney, for appellee.