Opinion
19016.
ARGUED SEPTEMBER 12, 1955.
DECIDED OCTOBER 13, 1955.
Certiorari to Court of Appeals. 92 Ga. App. 35.
G. B. Cowart, for plaintiff in error.
The judgment of the Court of Appeals in this case was error.
ARGUED SEPTEMBER 12, 1955 — DECIDED OCTOBER 13, 1955.
This case is before this court on certiorari from the Court of Appeals. The only question insisted upon by the applicant for certiorari is as follows: During the trial of Ronald Drury in the City Court of Brunswick on a charge of bastardy, and in the course of his statement to the jury, Drury said in part: "I knew nothing of the child in question or that Barbara was to have a child until I returned home after my discharge. When I got home my father told me that Barbara Ann Bibbs had just had a child which was the first I knew of it, and that her father had been to see him and said that I was the father of the child and had to make an allotment for Barbara and the child. My father also told me that when he told Mr. Bibbs, Barbara's father, that I had been discharged from the Marines and was coming home, Mr. Bibb told him that if he would pay him one hundred dollars, he would settle the case, and that they went to Judge Cogdell's office." At this point in the course of the defendant's statement, the solicitor objected to the conversation referred to on the ground that it was hearsay, irrelevant, and immaterial. The trial judge stated that he would not tell the defendant what to say, but would instruct the jury concerning the matter.
When the defendant had completed his statement, the trial judge instructed the jury that they were not to consider any conversation alleged to have been had between the defendant and his father concerning the payment of one hundred dollars to drop the case, as it would be hearsay, immaterial, and irrelevant to any issue in the case. The judge denied a new trial, and the Court of Appeals affirmed the case, basing its ruling on the case of Howard v. State, 73 Ga. 83.
The Court of Appeals expressed doubt as to the soundness of the ruling in the Howard case, supra, but said the ruling was binding as the oldest case on the question. As to the soundness of the Howard case, supra, we thoroughly agree, and this court has since the Howard case held exactly to the contrary. See Hackney v. State, 101 Ga. 512 ( 28 S.E. 1007); Vincent v. State, 153 Ga. 278 ( 112 S.E. 120) and cases there cited. Many other cases of both this court and the Court of Appeals to the same effect, rendered since the Howard case, supra, could be cited.
A request has been made that we review and overrule the Howard case. The members of this court would be willing to do so if it were necessary. However, we deem it unnecessary to overrule the Howard case, for the reason that this court in Coxwell v. State, 66 Ga. 309, 316, decided before the Howard case, said: "This ruling brings us to a construction of the act providing for prisoners in all criminal cases the right to make to the court and jury a statement, not under oath, involving his or her defense. This privilege was for the first time granted in 1868, and confined to cases of felony only. In 1874 it was extended to all criminal trials, and so stands today. The judge confined the prisoner within the limits prescribed for witnesses. This does not meet the broad and liberal purpose which the legislature intended to accomplish. He is not allowed to come as a witness; he comes as a prisoner, charged with crime; he does not appear to give testimony; he appears to make a statement, — a right far higher than the narrow limits which confine and guard against hearsay and conclusions, and expressly forbids the admissibility from his own witness of that which the party himself may have uttered in his own behalf. In the exercise of this right he is authorized to make such statement in the case as he may deem proper in his defense. It was never contemplated that he should be embarrassed and circumscribed by the strict rules of law which control the admissibility of evidence. Nor, upon the other hand, should he be permitted to occupy the time of the court and jury with long rambling, irrelevant matter inapplicable to the case, — and which, of necessity, must always rest in the sound discretion of the judge."
This language correctly states the law on this question and decides the question as contended by the applicant in certiorari, and it is contrary to the ruling of the Court of Appeals in the instant case. We reach this conclusion for the reason that what the defendant was saying in this statement in the instant case was connected with the case on trial, and did not amount to a long and rambling statement including matters inapplicable to the case. It is true that the facts stated were not strictly admissible as evidence. Nevertheless, they were facts directly concerning the case on trial, and were such facts as the defendant had a right to include in his statement to the jury.
It follows, the applicant in certiorari should have been granted a new trial on this ground of his amended motion for new trial, and the judgment of the Court of Appeals was error.
Judgment reversed. All the Justices concur.