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SABO v. FUTCH.
26223.
Habeas corpus. Lowndes Superior Court. Before Judge Calhoun.
FELTON, Justice.
On the trial of this habeas corpus proceeding the court erred in denying appellant's petition and in remanding him to the sheriff for the reason that the trial judge admitted in evidence the record of the testimony of two witnesses for appellee who testified on the first trial (over the objection that the showing that the witnesses were inaccessible was based on hearsay and on evidence not admissible as an exception to the hearsay rule) that the letters shown were records made in the due course of business contemplated by the rule making such evidence admissible.
On the second trial before the trial judge he denied the petition for habeas corpus and remanded the appellant to the appellee, from which judgment the appellant appeals. The only question in the case is whether the court properly admitted in evidence that part of the transcript of evidence on the first trial which contained the testimony of two witnesses who resided in Louisiana. The testimony of one showed that the appellant was the person named in the indictment and extradition papers and the testimony of the other witness was to the effect that appellant was in the State of Louisiana on the date he was charged by the grand jury in Louisiana with committing the felony, the basis of the extradition proceedings. The showing by the appellee as a basis for the introduction of the record of the testimony of the two witnesses was two letters from the Assistant District Attorney for the Fourth Judicial District of the State of Louisiana, as follows: "Mr. George A. Horkan, Jr. District Attorney Southern Judicial Circuit P. O. Box 682 Moultrie, Georgia 31768
Re: Extradition--James Sabo
Dear Mr. Horkan:
This will acknowledge your letter of July 28, 1970, advising that the extradition hearing in the above styled cause of action has been continued to August 7, 1970. I have conferred with Deputy Sheriff William O. Causey concerning his appearance in your district at this hearing. Mr. Causey will be unable to attend the hearing at this time because of previous commitments involving criminal investigations of his office. It is my understanding that this will not drastically interfere with the presentation of the case for the State of Louisiana in this matter. Thanking you for your courtesy and assistance to the State of Louisiana in these proceedings, and with best regards, I am, Very truly yours, /s/ Gilbert T. Brown, Jr. Asst. District Attorney GTB/obm
218 SABO v. FUTCH. (227 cc: Deputy W. O. Causey Sheriff's Office Monroe, Louisiana 71201" "Mr. Geo. A. Horkan, Jr. District Attorney P. O. Box 682 Moultrie, Georgia 31768
Re: Extradition--James Sabo
Reference your letter of June 25, 1970, we have interviewed Sharon K. George relative to reappearing in your court in connection with the extradition of James Sabo. Mrs. George is in advanced pregnancy and cannot make the trip at this time. She has moved from Monroe to an adjacent parish which caused this delay
In advising you. I am writing you this information and will confirm by telephone prior to your receiving this letter. Thanking you, I am, Very truly yours, /s/ Gilbert T. Brown, Jr. Asst. District Attorney"
"The language of the statute suggests that the writing must be made as a memorandum or record rather than for some other purpose this is true, letters frequently would not qualify as they are usually written for the purpose of communicating rather than recording information." Green, Georgia Law of Evidence, 312, p. 616. The fact that letters were received in the regular course of business is not sufficient to identify the signatures of the person who purportedly signed the letters. Lumpkin v. Provident Loan Society, 15 Ga. App. 816, 817 (84 SE 216). See also Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744 (159 SE2d 125); Estill v. Citizens & Southern Bank, 153 Ga. 618 (6a) (113 SE 552); Standridge v. Standridge, 224 Ga. 102 (160 SE2d 377); Tanner v. State, 213 Ga. 820, 823 (102 SE2d 176).
The court erred in admitting in evidence the two letters above quoted and in remanding the appellant to the appellee.
George A. Horkan, Jr., District Attorney, for appellee.
George T. Talley, Blackwell, Walker & Gay, W. L. Blackwell, Jr., for appellant.
ARGUED DECEMBER 15, 1970 -- DECIDED JANUARY 21, 1971.
Friday May 22 16:12 EDT


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