Georgia, Florida & Alabama Railway Co. v. Bittick & Mays

Lumpkin, J. These cases were formerly before the Supreme Court, and a reversal was had. 136 Ga. 138 (70 S. E. 1106). On the second trial a material witness on behalf of the defendant was absent. The defendant offered his testimony as contained in the brief of the evidence agreed upon and approved in connection with the previous motion for a new trial. The evidence offered to show the inaccessibility of the witness is sufficiently stated in the first headnote. It was enough to show prima facie that the absent witness was in 'another State and inaccessible, and that unsuccessful efforts had been made on behalf of the defendant to obtain his presence. Eagle & Phenix Mfg. Co. v. Welch, 61 Ga. 444, and cases cited. While in Atlanta & Charlotte R. Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. R. 145), it was said that the determination of whether or not a witness beyond the jurisdiction of the State was inaccessible in the sense in which that word is employed in the code was in each case a matter of determination by the presiding judge in the use of a sound discretion, yet, under the facts here appearing, we think that a case of inaccessibility was prima facie shown; and there being no conflicting evidence or other reason to throw doubt upon the showing so made, the evidence should have been admitted. No injustice can arise from this, because the witness had testified on a former trial, and had been cross-examined, and his entire examination was contained in the brief of evidence offered in evidence. It having been shown that the witness was out of the State, and that he had expressed an inability to be present some ten days before the trial, it was unnecessary, in order to show diligence, for the party desiring to use his testimony to continue to telegraph to him up to the very time when the trial took place. Some courts have held that there should be an effort to obtain the testimony of a witness out of the State, by interrogatories. But this has not been considered necessary by this court, where the witness has been subject to examination and cross-examination on a former trial of the same case, and his testimony at such trial has been offered at the second trial. Judgment reversed in each case. All the Justices concur.