Garman v. State

delivered the opinion of the court.

The amendment of the affidavit in the circuit court, was warranted by § 1581 of the code, as amended by the act of 1886. Acts of 1886, 85.

It was error to allow Lawrence Garman to be contradicted in rebuttal, as to a collateral and irrelevant matter. A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence. And if a question is put to a witness which is collateral and irrelevant to the issue, his answer cannot be contradicted by the party who asked the question; but it is conclusive against him. 1 Greenleaf Ev., §§ 448, 449. The course pursued with this witness is not within any exception to the rule stated.

As to the appellant, Joe Garman, it was error to require him to leave the court-room with other witnesses during the progress of the trial. It was his right to be present and to see and hear what occurred in the trial, and to advise and assist his counsel, and 'the fact that he was a witness as well as a defendant, did not deprive him of this right. And it does not alter the case, that he was being tried for a misdemeanor instead of a felony, or that he might, by his own default or misconduct, have waived his right to be present.

In French v. Sale, 63 Miss. 386, after the plaintiff had closed, the defendant, who was also a witness in his own behalf, was *199required by an order of court, to testify before his brother, who was-a witness for the defense, with whom he was charged to be in conspiracy for the purpose of cheating and defrauding his creditors,, was examined, or to retire from the court-room while his brother was testifying, and this was sanctioned on appeal. But it was said in that case, that to require a party to a civil suit, to leave the court-room unconditionally, while the case to which he was a party was being tried, would be a violation of his legal rights. French v. Sale is supported by Tift v. James, 52 Ga. 538, and perhaps, by other cases. 1 Greenleaf Ev., 14th ed., § 432, note a. We find no authority that extends judicial discretion in such matters, beyond what was done in French v. Sale, and none that would warrant its exercise to that extent, in any criminal trial. Ryan v. Cranch, 66 Ala. 636 ; Chester v. Bower, 55 Cal. 46; Larue v. Russell, 26 Ind. 386 ; Crowe v. Peters, 63 Mo. 429 ; Schneider v. Haas, 14 Oregon 174; 58 Am. R. 296.

Judgment reversed and cause remanded.