ARGUED JUNE 29, 1971.
DECIDED SEPTEMBER 9, 1971. REHEARING DENIED SEPTEMBER 29, 1971.
Attempted burglary. Fulton Superior Court. Before Judge Emeritus Long.
Edwin M. Saginar, Paul L. Wayman, for appellant.
Lewis R. Slaton, District Attorney, Carter Goode, Thomas W. Hayes, Joel M. Feldman, for appellee.
The defendant was indicted and tried for the offense of burglary. He was convicted of an attempt to commit burglary and sentenced to serve a term of 10 years, the last three to be suspended. A motion for new trial was filed, thereafter amended, heard and overruled. The appeal is from the judgment of conviction and sentence. Error is enumerated as to: (1) the denial of a motion for mistrial, (2) the allowance of certain testimony of officers who allegedly violated the rule of sequestration, (3) the denial of a thorough and sifting cross examination of a witness, (4) the insufficiency of the evidence to convict, and (5) the overruling of the motion for new trial as amended which incorporates each of the above specifications of error. Held:
1. On direct examination the State's attorney asked the witness this question: "Any particular reason why they have burglar alarms?" to which the witness answered, "A lot of robberies have been going on around there." The court immediately took action by stating, "Rule that out. It is not material to the case." Thereafter, counsel for defendant made a motion for mistrial, which was denied. The court in the exercise of its broad discretion quickly acted to remedy the error, if any. See Manchester v. State, 171 Ga. 121, 132 ( 155 S.E. 11); Johnson v. State, 209 Ga. 333 (6) ( 72 S.E.2d 291). However, we find no error in this complaint, since it was relevant to show the conditions existing in the neighborhood where the alleged crime occurred. See James v. State, 223 Ga. 677, 684 ( 157 S.E.2d 471).
2. During a recess the State's attorney held a conference outside the courtroom with two of the witnesses yet to testify and witnesses who had already testified. Counsel for the accused moved to exclude the testimony of two witnesses who had not testified for violation of the sequestration rule. The court refused to do so.
The decisions by the appellate courts of Georgia have not been completely harmonious on this subject. There is a line of cases which hold that a witness who violates the rule of sequestration may be punished for contempt but his testimony may not be rejected. Howard v. Echols, 31 Ga. App. 420 (1) ( 120 S.E. 815); Pope v. State, 42 Ga. App. 680 (7) ( 157 S.E. 211); Edwards v. State, 55 Ga. App. 187 ( 189 S.E. 678); Shelton v. State, 111 Ga. App. 351 (1) ( 141 S.E.2d 776), certified question answered (same case), 220 Ga. 610 ( 140 S.E.2d 839). But there is another line of cases which hold that a litigant has an absolute right to have the witnesses sequestered, so they may not be permitted to hear each other testify. This is, of course, subject to certain exceptions, including the court's discretion in allowing officers of the law to remain in the courtroom to assist the court and preserve order; allowing a witness who assists in the trial to remain, etc. But unless within an exception, the rule of sequestration must be observed where invoked, and a denial thereof has been held absolute ground for a new trial. In the case of Massey v. State, 220 Ga. 883 (4) ( 142 S.E.2d 832), the litigant objected to the witness testifying because of violation of the rule of sequestration. The Supreme Court held this complaint was actually directed to the failure to grant the right of sequestration under Code § 38-1703 (although the litigant simply objected to the witness testifying as being incompetent), and granted a new trial. Also see Head v. State, 111 Ga. App. 14 ( 140 S.E.2d 291); Poultryland, Inc. v. Anderson, 200 Ga. 549 ( 37 S.E.2d 785); Montos v. State, 212 Ga. 764 ( 95 S.E.2d 792).
In the case sub judice counsel for defendant stated to the trial court that there had been a conference or discussion in the hall during recess between certain witnesses who had already testified, and two witnesses who had not yet testified, in which the district attorney participated, and that the testimony that had been delivered was discussed during that conference. The district attorney stated that he had discussed the case during recess with the witnesses which he contended he had a right to do. No denial was made of the statement of defendant's counsel.
Objection was made to these two witnesses testifying upon the basis of violation of the rule of sequestration and they were permitted to testify over objection. We feel that the defendant was thus denied his right to sequestration of witnesses under Code § 38-1703, necessitating a new trial.
3. When a police officer testifies as to his investigation of a case as original evidence under the authority of Code § 38-302 and gives some of the testimony as to his conversation with the defendant, any statement of the defendant to said policeman denying this burglary would not be subject to the hearsay rule as being self-serving. Defense counsel was entitled to a thorough and sifting cross examination as to all that was said to the officer immediately after the defendant was detained (the officer denying that he had arrested him). The hearsay rule as to self-serving declarations does not apply where (1) made in the presence of the opposite party; or (2) they are part of a conversation of which some other part has already been permitted in evidence. Monroe v. State, 5 Ga. 85 (1); Mineola Mill Co. v. Griffin, 18 Ga. App. 668 (2) ( 90 S.E. 360); Miller v. State, 73 Ga. App. 810 (4) ( 38 S.E.2d 180). The court erred in refusing to allow the officer to testify as to whether he asked the defendant if "he attempted to break into this house."
4. While the jury returned a verdict of attempted burglary instead of burglary, which is a lesser crime than that charged, there was evidence, both direct and circumstantial, sufficient to support it, and the general grounds of the motion for new trial and the other enumerations of error based thereon are not meritorious. New Criminal Code § 26-1005 (Ga. L. 1968, pp. 1249, 1275); Shedd v. State, 178 Ga. 653 ( 173 S.E. 847); Wrisper v. State, 193 Ga. 157 ( 17 S.E.2d 714).
5. For the reasons stated in Headnotes 2 and 3 above, a new trial is necessary.
Judgment reversed. Jordan, P. J., and Quillian, J., concur.