concurring specially.
I concur except for the reasoning with respect to the “necessity” exception.
The rule of evidence in OCGA § 24-3-1 (b) is that “[hjearsay evidence is admitted only in specified cases from necessity.” Glisson v. *437State, 188 Ga. App. 152, 154 (2) (372 SE2d 462) (1988), the case cited by the majority, speaks of legal unavailability as usually occasioned by death or when the witness may not be compelled to testify. Here the witnesses are not dead but they may not be compelled to testify because they are far beyond the subpoena powers of the court. OCGA §§ 24-10-21 and 24-10-29.
Decided February 7, 1990. Douglas E. Smith, for appellant. C. Andrew Fuller, District Attorney, David C. Turk III, Lee Darragh, Assistant District Attorneys, for appellee.Even if appellant had established necessity based on their refusal to come voluntarily or some other explanation, the hearsay would not have been admissible because of its lack of trustworthiness. Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988). From what the in-court witnesses related, the foreign witnesses’ testimony would have been founded totally on hearsay. None of them had any direct knowledge of the principal’s death. All, being relatives, had an interest in preserving the principal from the bondsman if their kinsman were alive.
It is highly questionable whether, even if the foreign witnesses had been present in court and thus subject to the oath and to cross-examination, their testimony as to the fact of the principal’s death, offered under OCGA § 24-3-12, would have survived a challenge of hearsay because of the nature of that testimony. Their “unavailability” does not diminish its hearsay quality.
I am authorized to state that Chief Judge Carley joins in this special concurrence.