SHELTON
v.
THE STATE.
22767.
Supreme Court of Georgia.
Argued January 12, 1965. Decided February 4, 1965.*611 Wesley Asinof, Chester E. Wallace, F. L. Breen, for plaintiff in error.
William T. Boyd, Solicitor General, J. Robert Sparks, J. Walter LeCraw, William Hall, Jr., contra.
QUILLIAN, Justice.
The Court of Appeals has certified to this court a question of law as follows: "Where the trial court, at the request of the defendant, has invoked the rule of sequestration of witnesses and required that all witnesses be examined out of the hearing of each other (Code § 38-1703), and the defendant thereafter seeks to call as a witness a person who has remained in the courtroom as a spectator, is the testimony of such witness admissible over the objection of the State?"
The question is answered in the affirmative. Rooks v. State, 65 Ga. 330; Lassiter v. State, 67 Ga. 739; May v. State, 90 Ga. 793, 800 (17 S.E. 108); McWhorter v. State, 118 Ga. 55 (6) (44 S.E. 873); Phillips v. State, 121 Ga. 358 (3) (49 S.E. 290); Wallace v. Mize, 153 Ga. 374, 388 (112 S.E. 724); Best v. State, 176 Ga. 46, 48 (166 S.E. 772); McCartney v. McCartney, 217 Ga. 200 (7) (121 SE2d 785); Thomas v. State, 7 Ga. App. 615 (67 S.E. 707); Edwards v. State, 55 Ga. App. 187 (1) (189 S.E. 678). Art. I, Sec. I, Par. V of the Georgia Constitution and the Sixth Amendment to the United States Constitution. The pronouncements of Etheridge v. Hobbs, 77 Ga. 531, 534 (3 S.E. 251), Pergason v. Etcherson, 91 Ga. 785 (3) (18 S.E. 29), and Cunningham v. State, 97 Ga. 214 (22 S.E. 954), some of which deal with the consequences of a witness wilfully disobeying the order of sequestration and others with waiver of the right to use a witness under stated circumstances, do not require a contrary conclusion from that we have expressed in giving an affirmative answer to the question. In so far as Bird v. State, 50 Ga. 585, 588, is in conflict with what is ruled here, the same is unsound and is overruled.
Certified question answered in the affirmative. All the Justices concur.