2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 16 - Discovery
Article 1 - Definitions; Felony Cases
§ 17-16-3. Copy of Indictment or Accusation and List of Witnesses Furnished

Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and a list of witnesses that may be supplemented pursuant to the other provisions of this article.

(Code 1981, §17-16-3, enacted by Ga. L. 1994, p. 1895, § 4; Ga. L. 1995, p. 1250, § 2.)

- Copy of indictment and list of witnesses to be furnished to defendant, Ga. Const. 1983, Art. I, Sec. I, Para. XIV.

List of witnesses, Uniform Superior Court Rules, Rule 30.3.

Motions, demurrers, special pleas, and similar items in criminal matters, Uniform Superior Court Rules, Rule 31.

Pleadings by defendant, Uniform Superior Court Rules, Rule 33.

Unified appeal, pre-trial proceedings, Uniform Superior Court Rules, Rule 34.3.

Reply, Uniform State Court Rules, Rule 6.2.

Filing and processing documents, Uniform State Court Rules, Rule 36.

- Ga. L. 1983, p. 503, § 1, not codified by the General Assembly, provides: "It is the intent of this Act to implement certain changes imposed by Article I, Section I, Paragraph XIV of the Constitution of the State of Georgia."

- For article discussing available means of discovery for criminal cases in Georgia, see 12 Ga. St. B.J. 134 (1976). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For note, "Criminal Discovery: The Use of Notices to Produce," see 30 Mercer L. Rev. 331 (1978). For note, "The Criminal Discovery Dilemma in Georgia," see 34 Mercer L. Rev. 1113 (1983).

ANALYSIS

• General Consideration
• Demand and Waiver
• Compliance with Demand
• Newly Discovered Evidence

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 4997, former Code 1933, § 27-1403 and former Code Section 17-7-110, decided prior to its 1994 repeal by Ga. L. 1994, p. 1895, § 1, are included in the annotations for this Code section.

- Purpose of the former provisions was to ensure that an accused was not confronted at trial with testimony against the accused from witnesses whom the accused had not had the opportunity to interview prior to trial. Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974); Hibbs v. State, 133 Ga. App. 407, 211 S.E.2d 24 (1974); State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975); Davis v. State, 135 Ga. App. 203, 217 S.E.2d 343 (1975); Hunnicutt v. State, 135 Ga. App. 774, 219 S.E.2d 22 (1975); Barrentine v. State, 136 Ga. App. 802, 222 S.E.2d 103 (1975); Herring v. State, 238 Ga. 288, 232 S.E.2d 826 (1977); Lingerfelt v. State, 238 Ga. 355, 233 S.E.2d 356 (1977); King v. State, 147 Ga. App. 38, 248 S.E.2d 4 (1978); Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978); Williams v. State, 242 Ga. 757, 251 S.E.2d 254 (1978); Bisard v. State, 158 Ga. App. 62, 279 S.E.2d 310 (1981); Murphy v. State, 158 Ga. App. 278, 279 S.E.2d 728 (1981); Standridge v. State, 158 Ga. App. 482, 280 S.E.2d 850 (1981); Ellis v. State, 248 Ga. 414, 283 S.E.2d 870 (1981); Bryant v. State, 174 Ga. App. 522, 330 S.E.2d 743 (1985); Griffin v. State, 183 Ga. App. 386, 358 S.E.2d 917 (1987); Austin v. State, 199 Ga. App. 539, 405 S.E.2d 499 (1991), cert. denied, 199 Ga. App. 905, 405 S.E.2d 499 (1991) (decided under former Code 1933, § 27-1403 and former O.C.G.A. § 17-7-110).

Purpose of the former provisions requiring that the defendant be furnished on demand with a list of witnesses to be used against the defendant was to protect the defendant from being surprised by evidence which the defendant then had no chance to refute. Gibbons v. State, 136 Ga. App. 609, 222 S.E.2d 55 (1975), appeal dismissed, 237 Ga. 283, 227 S.E.2d 265 (1976); Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976); Anderson v. State, 141 Ga. App. 249, 233 S.E.2d 240 (1977) (decided under former Code 1933, § 27-1403).

Purpose of the former provision was to shield the defendant from the effect of testimony against which the defendant had no opportunity to defend. Upton v. State, 128 Ga. App. 547, 197 S.E.2d 478 (1973) (decided under former Code 1933, § 27-1403).

Requirement of disclosure of witnesses serves the dual purpose of defense discovery of witnesses prior to arraignment and the elimination of the element of surprise at trial. Butler v. State, 139 Ga. App. 92, 227 S.E.2d 889 (1976) (decided under former Code 1933, § 27-1403).

Demand for a list of witnesses prior to arraignment is for discovery; after arraignment it is to prevent surprise. Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244 (1979) (decided under former Code 1933, § 27-1403).

Transcending purpose of former O.C.G.A. § 17-7-110 was to insure that an accused was not confronted at trial with testimony against the accused from witnesses whom the accused had not had the opportunity to interview prior to trial. Chezem v. State, 199 Ga. App. 869, 406 S.E.2d 522 (1991) (decided under former O.C.G.A. § 17-7-110).

Protection afforded by former provision was against forcing a defendant to trial without adequate time to interview the state's witnesses. Davis v. State, 135 Ga. App. 203, 217 S.E.2d 343 (1975) (decided under former Code 1933, § 27-1403).

§ 17-7-110 was within the sound discretion of the trial court. - See Manning v. State, 207 Ga. App. 181, 427 S.E.2d 521 (1993) (decided under former O.C.G.A. § 17-7-110).

- Purpose of former provision was served by requiring that the defendant receive the names of the witnesses promptly upon demand and at a reasonable time before trial. Williams v. State, 242 Ga. 757, 251 S.E.2d 254 (1978), appeal dismissed, 287 Ga. 192; 695 S.E.2d 244 (Ga. 2010) (decided under former Code 1933, § 27-1403).

- Right guaranteed by former provision to be furnished, on demand, with a list of witnesses on whose testimony the charge against the accused is founded, is the right, on demand, to be furnished by the district attorney's office, prior to arraignment, with the list of witnesses who will testify for the state on the trial. Sutton v. State, 237 Ga. 423, 228 S.E.2d 820 (1976) (decided under former Code 1933, § 27-1403).

- Under Ga. Const. 1976, Art. I, Sec. I, Para. XI (see Ga. Const. 1983, Art. I, Sec. I, Para. XIV) and the former provisions, the accused shall be furnished on demand with a copy of the indictment and a list of witnesses who gave testimony before the grand jury. Martin v. State, 73 Ga. App. 573, 37 S.E.2d 411, cert. denied, 329 U.S. 760, 67 S. Ct. 115, 91 L. Ed. 655 (1946) (decided under former Code 1933, § 27-1403).

- When the name of the witness is included on any list given to defense counsel a reasonable time before the trial, the statute is satisfied inasmuch as the defendant has had an opportunity to interview the witness before trial. A different result is not called for unless it has been made to appear on the record that a witness whose name appeared on an early list, but who was dropped from a later list, is offered at trial contrary to the prosecution's representation to the defense that the witness' testimony would not be offered during trial. Williams v. State, 242 Ga. 757, 251 S.E.2d 254 (1978), appeal dismissed, 287 Ga. 192, 695 S.E.2d 244 (2010) (decided under former Code 1933, § 27-1403).

Even though a witness's name was not on the state's witness list, the state's formal disclosure of the witness as the confidential informant six weeks prior to trial combined with: (i) the summary of the witness's testimony found in the search warrant affidavit given to the defendant; (ii) the defendant's admitted knowledge of the witness's identity prior to the formal disclosure; (iii) the defendant's own pretrial reference to the witness as a material witness; and (iv) the defendant's attempts to interview the witness prior to trial, fulfilled the purpose of the witness list rule. McLarty v. State, 238 Ga. App. 27, 516 S.E.2d 818 (1999).

- Former statute was traditionally not interpreted narrowly, but had been construed to accomplish the statutory purpose of giving actual, accurate, timely notice. Newman v. State, 237 Ga. 376, 228 S.E.2d 790 (1976); Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244 (1979) (decided under former Code 1933, § 27-1403).

Application of the former provision was within the sound discretion of the trial court. Campbell v. State, 149 Ga. App. 299, 254 S.E.2d 389, cert. denied, 444 U.S. 933, 100 S. Ct. 279, 62 L. Ed. 2d 191 (1979) (decided under former Code 1933, § 27-1403).

- There is no right in an accused to have the list of witnesses who will testify on the trial prior to the preliminary hearing. Sutton v. State, 237 Ga. 423, 228 S.E.2d 820 (1976) (decided under former Code 1933, § 27-1403).

Section authorizes the sanction of exclusion of the witnesses' testimony. Davis v. State, 135 Ga. App. 203, 217 S.E.2d 343 (1975) (decided under former Code 1933, § 27-1403).

Sanction of exclusion is not mandatory when the trial judge in the judge's discretion determines that the defendant can be protected by some other form of relief. Davis v. State, 135 Ga. App. 203, 217 S.E.2d 343 (1975); Murphy v. State, 158 Ga. App. 278, 279 S.E.2d 728 (1981) (decided under former Code 1933, § 27-1403).

Since the purpose of former O.C.G.A. § 17-7-110 was satisfied by the trial court's effort to afford the defendant other forms of relief from the addition of a witness, besides excluding the witness' testimony altogether, there is no error in allowing this witness to testify. Gilbert v. State, 159 Ga. App. 326, 283 S.E.2d 361 (1981) (decided under former O.C.G.A. § 17-7-110).

- Noncompliance with the former provisions by the state did not entitle a defendant to a directed verdict of acquittal. Hunnicutt v. State, 135 Ga. App. 774, 219 S.E.2d 22 (1975); Maddox v. State, 145 Ga. App. 212, 243 S.E.2d 636 (1978); Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980) (decided under former Code 1933, § 27-1403).

No right to dismissal of the accusation. Maddox v. State, 145 Ga. App. 212, 243 S.E.2d 636 (1978) (decided under former Code 1933, § 27-1403).

Trial judge can use judicial discretion to determine if the defendant can be protected by some other form of appropriate relief, such as a motion for mistrial or continuance. Minis v. State, 150 Ga. App. 671, 258 S.E.2d 308 (1979), overruled on other grounds, Boney v. Tims, 254 Ga. 664, 333 S.E.2d 592 (1985) (decided under former Code 1933, § 27-1403).

If the trial court offered to delay testimony of a witness omitted from the witness list for a day to permit defense counsel to interview the witness, and noted that defense counsel did not object prior to trial and indicated that defense counsel had interviewed the witness and needed neither a recess nor a continuance, the purpose of former O.C.G.A. § 17-7-110 was satisfied by the court's offer to provide relief other than exclusion of the witness's testimony. Simmons v. State, 249 Ga. 860, 295 S.E.2d 84 (1982) (decided under former O.C.G.A. § 17-7-110).

Testimony, over defendant's objection, of a witness who was not included on the list of witnesses was not error when the name of the witness was provided to the defendant on the pretrial docket approximately thirteen days prior to trial and when, in making the defendant's objection, the defendant did not request a continuance or seek to conduct an interview prior to the witness being called to testify. Dixon v. State, 214 Ga. App. 374, 448 S.E.2d 40 (1994) (decided under former O.C.G.A. § 17-7-110).

Trial judge may allow introduction of additional evidence even though the evidence is not strictly in rebuttal of presented defense evidence. Brady v. State, 206 Ga. App. 497, 426 S.E.2d 15 (1992) (decided under former O.C.G.A. § 17-7-110).

Available remedies include mistrial and continuance. Davis v. State, 135 Ga. App. 203, 217 S.E.2d 343 (1975); Hunnicutt v. State, 135 Ga. App. 774, 219 S.E.2d 22 (1975); Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980) (decided under former Code 1933, § 27-1403).

Denial of motion for mistrial or continuance would present for review the question of abuse of the trial court's discretion. Davis v. State, 135 Ga. App. 203, 217 S.E.2d 343 (1975) (decided under former Code 1933, § 27-1403).

Doctrine of harmless error was applicable to former provisions. Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976) (decided under former Code 1933, § 27-1403).

Doctrine of harmless error was applicable to flaws in the prosecution's compliance with the former provisions. Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244 (1979) (decided under former Code 1933, § 27-1403).

- Contention that the testimony of a witness should have been excluded because the witness's name was not included in the list of witnesses furnished pursuant to former O.C.G.A. § 17-7-110 which was raised for the first time on appeal will not be considered. Jackson v. State, 186 Ga. App. 847, 368 S.E.2d 771 (1988) (decided under former O.C.G.A. § 17-7-110).

State's failure to call a witness on the state's list did not deny the defendant's Sixth Amendment rights because, under O.C.G.A. § 17-7-191, the defendant could have subpoenaed the witness if deemed necessary to the defendant for impeachment purposes. Johnson v. State, 232 Ga. App. 717, 503 S.E.2d 603 (1998) (decided under former O.C.G.A. § 17-7-110).

Cited in Dean v. State, 43 Ga. 218 (1871); Palmer v. State, 23 Ga. App. 84, 97 S.E. 460 (1918); Parr v. State, 117 Ga. App. 484, 160 S.E.2d 865 (1968); Spell v. State, 225 Ga. 705, 171 S.E.2d 285 (1969); Butler v. State, 226 Ga. 56, 172 S.E.2d 399 (1970); Mitchell v. State, 226 Ga. 450, 175 S.E.2d 545 (1970); Evans v. State, 227 Ga. 571, 181 S.E.2d 845 (1971); Butts v. State, 126 Ga. App. 512, 191 S.E.2d 329 (1972); Vinson v. State, 127 Ga. App. 607, 194 S.E.2d 583 (1972); Moye v. State, 129 Ga. App. 52, 198 S.E.2d 514 (1973); Brown v. State, 129 Ga. App. 713, 200 S.E.2d 924 (1973); Smith v. State, 130 Ga. App. 390, 203 S.E.2d 375 (1973); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); Harmon v. State, 133 Ga. App. 720, 213 S.E.2d 23 (1975); Kitchens v. State, 134 Ga. App. 81, 213 S.E.2d 180 (1975); Alexander v. State, 134 Ga. App. 201, 213 S.E.2d 560 (1975); Wells v. State, 134 Ga. App. 328, 214 S.E.2d 414 (1975); McGinty v. State, 134 Ga. App. 399, 214 S.E.2d 678 (1975); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975); Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975); Bowen v. State, 136 Ga. App. 296, 221 S.E.2d 69 (1975); Stanley v. State, 136 Ga. App. 385, 221 S.E.2d 242 (1975); Jordan v. State, 235 Ga. 732, 222 S.E.2d 23 (1975); Baldwin v. State, 137 Ga. App. 32, 223 S.E.2d 10 (1975); Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976); Gale v. State, 138 Ga. App. 261, 226 S.E.2d 264 (1976); Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976); Brown v. State, 238 Ga. 98, 231 S.E.2d 65 (1976); Williams v. State, 238 Ga. 298, 232 S.E.2d 535 (1977); Baker v. State, 143 Ga. App. 302, 238 S.E.2d 241 (1977); McDowell v. State, 239 Ga. 626, 238 S.E.2d 415 (1977); Soloman v. State, 143 Ga. App. 449, 238 S.E.2d 573 (1977); Lewis v. State, 239 Ga. 732, 238 S.E.2d 892 (1977); Maddox v. State, 239 Ga. 846, 239 S.E.2d 29 (1977); James v. State, 143 Ga. App. 696, 240 S.E.2d 149 (1977); Foster v. State, 145 Ga. App. 595, 244 S.E.2d 118 (1978); Wooten v. State, 145 Ga. App. 743, 245 S.E.2d 34 (1978); Leonard v. State, 146 Ga. App. 439, 246 S.E.2d 450 (1978); Tippins v. State, 146 Ga. App. 448, 246 S.E.2d 458 (1978); Young v. State, 146 Ga. App. 391, 246 S.E.2d 711 (1978); Brown v. State, 242 Ga. 536, 250 S.E.2d 438 (1978); Aldridge v. State, 153 Ga. App. 744, 266 S.E.2d 513 (1980); Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980); Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981); Davis v. State, 159 Ga. App. 197, 283 S.E.2d 17 (1981); State v. Adamczyk, 162 Ga. App. 288, 290 S.E.2d 149 (1982); Smart v. State, 162 Ga. App. 161, 290 S.E.2d 491 (1982); Bradshaw v. State, 162 Ga. App. 750, 293 S.E.2d 360 (1982); House v. Balkcom, 562 F. Supp. 1111 (N.D. Ga. 1983); Bailey v. State, 169 Ga. App. 802, 315 S.E.2d 297 (1984); Craig v. State, 170 Ga. App. 6, 316 S.E.2d 18 (1984); Powell v. State, 171 Ga. App. 876, 321 S.E.2d 745 (1984); Blackston v. State, 172 Ga. App. 172, 322 S.E.2d 300 (1984); Fleming v. Kemp, 748 F.2d 1435 (11th Cir. 1984); Buie v. State, 254 Ga. 167, 326 S.E.2d 458 (1985); Wilkerson v. State, 177 Ga. App. 469, 339 S.E.2d 747 (1986); Watson v. State, 178 Ga. App. 778, 344 S.E.2d 667 (1986); Daniel v. State, 180 Ga. App. 179, 348 S.E.2d 720 (1986); Allison v. State, 256 Ga. 851, 353 S.E.2d 805 (1987); Baine v. State, 181 Ga. App. 856, 354 S.E.2d 177 (1987); Willis v. State, 183 Ga. App. 408, 359 S.E.2d 194 (1987); Anderson v. State, 258 Ga. 70, 365 S.E.2d 421 (1988); Holiday v. State, 258 Ga. 393, 369 S.E.2d 241 (1988); Lockleer v. State, 188 Ga. App. 271, 372 S.E.2d 663 (1988); Williams v. State, 191 Ga. App. 913, 383 S.E.2d 344 (1989); Reedman v. State, 193 Ga. App. 688, 388 S.E.2d 763 (1989); Tatum v. State, 195 Ga. App. 349, 393 S.E.2d 494 (1990); Kilgore v. State, 195 Ga. App. 884, 395 S.E.2d 337 (1990); McKeever v. State, 196 Ga. App. 91, 395 S.E.2d 368 (1990); Respress v. State, 196 Ga. App. 858, 397 S.E.2d 195 (1990); Sheriff v. State, 197 Ga. App. 143, 397 S.E.2d 732 (1990); Workman v. State, 198 Ga. App. 455, 402 S.E.2d 76 (1991); Carter v. State, 199 Ga. App. 843, 406 S.E.2d 238 (1991); Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Rogers v. State, 261 Ga. 649, 409 S.E.2d 655 (1991); Wilcox v. State, 202 Ga. App. 491, 415 S.E.2d 23 (1992); Carroll v. State, 208 Ga. App. 316, 430 S.E.2d 649 (1993); White v. State, 208 Ga. App. 885, 432 S.E.2d 562 (1993); Grace v. State, 210 Ga. App. 718, 437 S.E.2d 485 (1993); Rosser v. State, 211 Ga. App. 402, 439 S.E.2d 72 (1993); Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000); Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000); Garey v. State, 273 Ga. 133, 539 S.E.2d 123 (2000); Ricarte v. State, 249 Ga. App. 50, 547 S.E.2d 703 (2001).

Demand and Waiver

Requirement that demand be made.

- It was imperative that demand be made before the former statute became operative. Coleman v. State, 124 Ga. App. 313, 183 S.E.2d 608 (1971) (decided under former Code 1933, § 27-1403).

If the defendant did not give the state a written discovery request pursuant to O.C.G.A. § 17-16-1 et seq., the state was not obligated under O.C.G.A. § 17-16-3 to furnish a list of witnesses on the state's own initiative; further, as the defendant did not file a written demand for a list of witnesses, the state was not obligated to supply such a list. Anderson v. State, 265 Ga. App. 428, 594 S.E.2d 669 (2004).

State's use of a witness that was not on the list provided to the defendant did not violate O.C.G.A. § 17-16-3; there was nothing in the record to show that the defendant gave the state a written discovery request pursuant to O.C.G.A. § 17-16-2 or made a written demand for a list of witnesses, and the witness was offered to rebut an assertion that the defendant made while testifying in the defendant's own defense; moreover, the trial court gave the defendant time to interview the witness and limited the scope of questioning. Rayo-Leon v. State, 281 Ga. App. 74, 635 S.E.2d 368 (2006).

Demand for a list of witnesses must be timely. Smith v. State, 123 Ga. App. 269, 180 S.E.2d 556 (1971); Lashley v. State, 132 Ga. App. 427, 208 S.E.2d 200 (1974) (decided under former Code 1933, § 27-1403).

- It was imperative that a demand prior to arraignment be made before the former statute became operative. Bell v. State, 129 Ga. App. 783, 201 S.E.2d 340 (1973); Daniels v. State, 136 Ga. App. 854, 222 S.E.2d 673 (1975); Page v. State, 237 Ga. 20, 227 S.E.2d 8 (1976); Thomas v. State, 139 Ga. App. 467, 228 S.E.2d 604 (1976); Iler v. State, 139 Ga. App. 743, 229 S.E.2d 543 (1976); Bell v. State, 144 Ga. App. 692, 242 S.E.2d 345 (1978); Burns v. State, 147 Ga. App. 429, 249 S.E.2d 145 (1978) (decided under former Code 1933, § 27-1403).

In order to invoke the provisions of the former statute prohibiting the state from calling a witness when the defendant had not been furnished such name, it was necessary that a demand for a list of witnesses be made before arraignment. Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975) (decided under former Code 1933, § 27-1403).

- Proper demand must be made upon the district attorney or an assistant district attorney. Coleman v. State, 124 Ga. App. 313, 183 S.E.2d 608 (1971) (decided under former Code 1933, § 27-1403).

Demand for a list of witnesses must be made to the solicitor or the solicitor's assistant (now district attorney or assistant to the district attorney). Smith v. State, 123 Ga. App. 269, 180 S.E.2d 556 (1971); Lashley v. State, 132 Ga. App. 427, 208 S.E.2d 200 (1974) (decided under former Code 1933, § 27-1403).

It is imperative that the accused make demand upon the district attorney or an assistant district attorney. Thomas v. State, 139 Ga. App. 467, 228 S.E.2d 604 (1976); Page v. State, 237 Ga. 20, 227 S.E.2d 8 (1976); Bell v. State, 144 Ga. App. 692, 242 S.E.2d 345 (1978); Burns v. State, 147 Ga. App. 429, 249 S.E.2d 145 (1978) (decided under former Code 1933, § 27-1403).

Request made on someone other than the district attorney or an assistant district attorney is not a proper demand. Beeks v. State, 225 Ga. 200, 167 S.E.2d 156 (1969); Jackson v. State, 158 Ga. App. 530, 281 S.E.2d 252 (1981) (decided under former Code 1933, § 27-1403).

- Demand for a list of witnesses must be in writing. Burns v. State, 147 Ga. App. 429, 249 S.E.2d 145 (1978) (decided under former Code 1933, § 27-1403); Sexton v. State, 189 Ga. App. 12, 374 S.E.2d 824 (1988) (decided under former O.C.G.A. § 17-7-110); Ronskowsky v. State, 190 Ga. App. 147, 378 S.E.2d 185 (1989).

Demand for a list of witnesses must be in writing and served upon the district attorney. Jackson v. State, 166 Ga. App. 252, 305 S.E.2d 4 (1983) (decided under former O.C.G.A. § 17-7-110).

If no demand for the list of witnesses appears in the record, it must be assumed that it was not in writing. Smith v. State, 123 Ga. App. 269, 180 S.E.2d 556 (1971) (decided under former Code 1933, § 27-1403).

- If there is nothing in the record showing to whom the demand alluded to by defense counsel was made, when the demand was made, from whom counsel received the list of witnesses, whose names appeared on the list, or the list itself, there is no error in overruling an objection to calling a witness not listed on the list of witnesses. Coleman v. State, 124 Ga. App. 313, 183 S.E.2d 608 (1971) (decided under former Code 1933, § 27-1403).

- If the defendant did not object at trial to a witness's name not being included on the list of witnesses provided to defense counsel prior to trial, such an objection may not be raised for the first time on appeal. Head v. State, 203 Ga. App. 730, 417 S.E.2d 398 (1992) (decided under former O.C.G.A. § 17-7-110).

"On demand" cannot be construed to mean "instanter", and must therefore be taken to imply as soon as possible after the demand is made. Fishman v. State, 128 Ga. App. 505, 197 S.E.2d 467 (1973); Mitchell v. State, 134 Ga. App. 376, 214 S.E.2d 593 (1975) (decided under former Code 1933, § 27-1403).

For denial of continuance if demand for list solely for purposes of delay, see Hunnicutt v. State, 130 Ga. App. 630, 204 S.E.2d 310 (1974) (decided under former Code 1933, § 27-1403).

Demand for a list of witnesses may be waived. Smith v. State, 123 Ga. App. 269, 180 S.E.2d 556 (1971) (decided under former Code 1933, § 27-1403).

- If the indictment contains a plea of not guilty containing a waiver of arraignment, copy of indictment, and list of witnesses sworn before the grand jury, signed by the defendant's attorney, compliance with the demand for a list of witnesses was accordingly waived. Smith v. State, 123 Ga. App. 269, 180 S.E.2d 556 (1971) (decided under former Code 1933, § 27-1403).

Written waiver renders oral demand, when allowed, ineffective. Burns v. State, 147 Ga. App. 429, 249 S.E.2d 145 (1978) (decided under former Code 1933, § 27-1403).

If there is no demand for the list of witnesses, the accused has no rights by reason of not being furnished with the list. Fears v. State, 125 Ga. 739, 54 S.E. 667 (1906) (decided under former Penal Code 1895, § 945).

- Waiver of the list of witnesses appearing before the grand jury is not a waiver of the witnesses who would testify at the trial. Grainger v. State, 138 Ga. App. 753, 227 S.E.2d 483 (1976) (decided under former Code 1933, § 27-1403).

- Demand for the list of witnesses may be waived by not crossing out the printed waiver on the indictment. Lashley v. State, 132 Ga. App. 427, 208 S.E.2d 200 (1974) (decided under former Code 1933, § 27-1403).

- If the defendant upon call of the defendant's case waived the list of witnesses and arraignment, the defendant cannot complain of the failure to comply with the requirement of this section that every person charged with an offense against the laws shall be furnished, on demand, prior to the person's arraignment, with a copy of the accusation and a list of the witnesses on whose testimony the charge against the accused is founded. Brooks v. State, 227 Ga. 339, 180 S.E.2d 721 (1971) (decided under former Code 1933, § 27-1403).

- Defendant does not waive the defendant's right to demand a list of witnesses the state may call if the demand is made prior to arraignment. The date of arraignment must be regarded as coincident with the date on which the accused was given an opportunity to plead in the case. Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974) (decided under former Code 1933, § 27-1403).

List of witnesses must be furnished on demand. Hyatt v. State, 134 Ga. App. 703, 215 S.E.2d 698 (1975) (decided under former Code 1933, § 27-1403).

List must be complete within a reasonable time before trial so that the defense may be adequately prepared. Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976) (decided under former Code 1933, § 27-1403).

Failure to provide a list of state's witnesses until immediately before trial was empty compliance with this section and overruling the motion for continuance was therefore reversible error. Fishman v. State, 128 Ga. App. 505, 197 S.E.2d 467 (1973) (decided under former Code 1933, § 27-1403).

- This section requires only that the state furnish a list of the witnesses on whose testimony the charge against the accused is founded. Campbell v. State, 149 Ga. App. 299, 254 S.E.2d 389, cert. denied, 444 U.S. 933, 100 S. Ct. 279, 62 L. Ed. 2d 191 (1979) (decided under former Code 1933, § 27-1403).

- There is no requirement that the state call more witnesses than the state needs to present the state's case. Griffin v. State, 133 Ga. App. 508, 211 S.E.2d 382 (1974) (decided under former Code 1933, § 27-1403).

When a defendant demands a list of those witnesses sworn before the grand jury the state should furnish such list but need not go further and furnish a list of any and all other witnesses who might be called at the trial. Johnson v. State, 121 Ga. App. 281, 173 S.E.2d 412 (1970) (decided under former Code 1933, § 27-1403).

Failure to include coindictee's name on witness list was not reversible error since the defendant was notified a month before trial that the state was dropping charges against the coindictee in exchange for the coindictee's testimony against the defendant. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817, 142 L. Ed. 2d 676 (1999).

- This section did not render a witness not included on such list incompetent to testify when the latter is not one who testified before the grand jury. Inman v. State, 72 Ga. 269 (1884)(decided under former Code 1882, § 4997).

- It is not necessary that the prosecution scrupulously comb the state's files to guarantee that the first list of witnesses given the accused is absolutely complete under the harsh penalty of not being allowed to use any witness who inadvertently is left off the list. Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974); Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976) (decided under former Code 1933, § 27-1403).

Prosecution may furnish supplemental lists, even though the witnesses' names contained therein are not newly discovered, provided that the complete list is available to the accused promptly after the accused's demand and at a reasonable time before trial. Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974) (decided under former Code 1933, § 27-1403).

Supplemental list must be provided within a reasonable period of time before trial. Fleming v. State, 236 Ga. 434, 224 S.E.2d 15 (1976) (decided under former Code 1933, § 27-1403).

If there was testimony of witnesses whose names were not included on the original list of witnesses furnished by the prosecution, such omission does not constitute an impermissible violation of this section, if the list was complete within a reasonable time before trial so that the defense can be adequately prepared. Wilson v. State, 151 Ga. App. 501, 260 S.E.2d 527 (1979) (decided under former Code 1933, § 27-1403).

- This section required that the list of witnesses must be complete within a reasonable time before trial so that the defense may be adequately prepared. What constitutes a reasonable time before trial must depend upon the nature of the case, the number of the state's witnesses, the nature of the witnesses' testimony, and any other factor which may logically bear upon the question. Ellis v. State, 248 Ga. 414, 283 S.E.2d 870 (1981) (decided under former Code 1933, § 27-1403).

- It was error to allow the testimony of a witness who was not named on the original witness list but, rather, included on an updated list given to the defendant after voir dire. Bentley v. State, 210 Ga. App. 862, 438 S.E.2d 110 (1993) (decided under former O.C.G.A. § 17-7-110).

- Witness could testify as to a prior transaction even though the identity of the witness was not disclosed until the day of voir dire. Dacus v. State, 213 Ga. App. 180, 444 S.E.2d 110 (1994) (decided under former O.C.G.A. § 17-7-110).

- If a new and additional list of witnesses is furnished to defense counsel the day before the trial, and defense counsel states that counsel has not had time to interview the witnesses and determine exactly what the evidence is against the client, the court errs in refusing to grant a continuance for the term or at least a delay of trial for some time later in the term. Barrentine v. State, 136 Ga. App. 802, 222 S.E.2d 103 (1975) (decided under former Code 1933, § 27-1403).

- Since the defendant was given oral notice of a prosecution witness five or six days before trial, this was sufficient time to locate the witness and check the witness's background. Logan v. State, 170 Ga. App. 809, 318 S.E.2d 516 (1984) (decided under former O.C.G.A. § 17-7-110).

- Former Code 1933, § 27-1403 did not require that the addresses of all witnesses be furnished. Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975)(decided under former Code 1933, § 27-1403); Campbell v. State, 149 Ga. App. 299, 254 S.E.2d 389, cert. denied, 444 U.S. 933, 100 S. Ct. 279, 62 L. Ed. 2d 191 (1979) (decided under former Code 1933, § 27-1403).

List of witnesses meets the requirement of this section. Addresses and telephone numbers of witnesses need not be furnished. Roberts v. State, 243 Ga. 604, 255 S.E.2d 689 (1979) (decided under former Code 1933, § 27-1403).

This section required only that the state furnish a list of the witnesses on whose testimony the charge against the accused was founded. The section did not demand that the addresses of all such witnesses be furnished. Lewis v. State, 159 Ga. App. 135, 282 S.E.2d 750 (1981) (decided under former Code 1933, § 27-1403).

Addresses and telephone numbers of witnesses need not be furnished. The better practice, however, would dictate that the state furnish such addresses and telephone numbers along with the list of witnesses if such information is available. Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 180 (1987); overruled on other grounds, Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007) (decided under former O.C.G.A. § 17-7-110).

When a witness's name was contained in the indictment, a defendant cannot validly contend that the defendant had been surprised or unable to interview the witness in question through lack of knowledge of such witness. Herring v. State, 238 Ga. 288, 232 S.E.2d 826 (1977); Garvin v. State, 144 Ga. App. 396, 240 S.E.2d 925 (1977); Redmond v. State, 252 Ga. 142, 312 S.E.2d 315 (1984) (decided under former Code 1933, § 27-1403).

- Trial court did not err in permitting Johnny Hull to testify, although the state mistakenly identified the witness as "Johnny Hill" in response to the defendant's request for a witness list pursuant to former O.C.G.A. § 17-7-110, since the witness's address had also been provided to the defendant and the witness was identified sufficiently for counsel to have had an opportunity to interview the witness prior to trial. Duncan v. State, 205 Ga. App. 181, 421 S.E.2d 336 (1992) (decided under former O.C.G.A. § 17-7-110).

Witness listed as "Ms. [or Mrs.] Floyd" was identified sufficiently for counsel to have an opportunity to interview the witness prior to trial as although the witness' name had been "Josephine Dedmon" at the time of the crime, the witness' previous name had been "Josephine Floyd." Moody v. State, 258 Ga. 818, 375 S.E.2d 30 (1989) (decided under former O.C.G.A. § 17-7-110).

Failure to have a sheriff's name reported on the list of state's witnesses supplied upon demand to the accused when there is no injury shown comes within the harmless error rule. Caito v. State, 130 Ga. App. 831, 204 S.E.2d 765 (1974) (decided under former Code 1933, § 27-1403).

- If the defendant fails to demand a list of witnesses, the state may use a witness whose name had not been furnished to the defendant. Prather v. State, 223 Ga. 721, 157 S.E.2d 734 (1967) (decided under former Code 1933, § 27-1403).

If no demand is made upon the solicitor general (now district attorney) for the names of witnesses to be used by the state until after arraignment and after the first witness had testified at trial, this section does not require the state to use only those witnesses shown on the indictment. Green v. State, 223 Ga. 611, 157 S.E.2d 257 (1967) (decided under former Code 1933, § 27-1403).

It is not error to permit a witness to testify whose name did not appear on a list of witnesses furnished to defendant if there was no demand for a list of witnesses filed prior to arraignment. Jackson v. State, 235 Ga. 857, 221 S.E.2d 605 (1976) (decided under former Code 1933, § 27-1403).

If there was no formal demand for a list of witnesses before arraignment and no motion for mistrial or for continuance, it is not error to allow a witness whose name is not on a witness list furnished the defense to testify. Grainger v. State, 138 Ga. App. 753, 227 S.E.2d 483 (1976) (decided under former Code 1933, § 27-1403).

- Defendant contended that the trial court erred by failing to dismiss the indictment because the defendant was not furnished with a complete copy of the indictment pursuant to former O.C.G.A. § 17-7-110 pointing out that: (1) Count 1 of the indictment was not attached to the copy which the defendant was furnished; and that (2) the names of the grand jurors who found the indictment did not appear on the defendant's copy of the indictment; however, there was no resultant harm to the defendant, since the defendant had not demonstrated that the defendant was surprised by Count 1 of the indictment and the defendant had not shown how the defendant was prejudiced by the absence of the names of the grand jurors. Byrd v. State, 182 Ga. App. 284, 355 S.E.2d 666 (1987) (decided under former O.C.G.A. § 17-7-110).

- If the defendant never sought to inquire whether the witness had arrived at the site of the trial, nor asked the court for an opportunity to interview the witness prior to the witness's testimony, the defendant failed to demonstrate that the defendant was denied access to the witness. Felker v. State, 252 Ga. 351, 314 S.E.2d 621, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984) (decided under former O.C.G.A. § 17-7-110).

- Prosecution's failure to include witness's name on written list of witnesses submitted to defense is harmless error since the defendant received oral notice and did not claim to be unfairly surprised. Logan v. State, 170 Ga. App. 809, 318 S.E.2d 516 (1984) (decided under former O.C.G.A. § 17-7-110).

Although the appellants contended that the trial court erred in allowing the state to call four witnesses whose names had not appeared on the list of witnesses provided by the state, including the forensic chemist from the State Crime Laboratory who had analyzed some cocaine, plus three chain-of-custody witnesses, the failure to list these witnesses resulted in no prejudice to either of the appellants. At the time of their arraignment, both appellants were presented with a copy of the crime lab report stating the results of the chemical analysis of the cocaine, and this report disclosed both the identity and the involvement not only of the crime lab expert but also of two of the three chain-of-custody witnesses. As for the third chain-of-custody witness, a file clerk at the police station who had logged the contraband into the evidence room, the trial court allowed the appellants an opportunity to interview the clerk before the clerk took the stand. Askew v. State, 192 Ga. App. 351, 385 S.E.2d 21 (1989) (decided under former O.C.G.A. § 17-7-110).

- Because the defense was on notice as to the prior rape victim's identity through the prosecution's Notice of Similar Occurrence filed pursuant to Ga. Unif. Super. Ct. R. 31.3, no cognizable constitutional claim was presented by the prosecution's failure to include her name on the prosecution's list of witnesses pursuant to former O.C.G.A. § 17-7-110 and Ga. Unif. Super. Ct. R. 30.3. McBride v. Sharpe, 25 F.3d 962 (11th Cir. 1994), cert. denied, 513 U.S. 990, 115 S. Ct. 489, 130 L. Ed. 2d 401 (1994) (decided under former O.C.G.A. § 17-7-110).

- Since the defendant was tried upon three indictments, since the defendant's objection was that the defendant was not supplied with a list of witnesses as to only one of the indictments, since there was no written demand for such a list under that indictment, and since the witnesses called as to that indictment were on a list supplied to the defendant as to the other indictments, the circumstances did not constitute reversible error. Moore v. State, 170 Ga. App. 709, 318 S.E.2d 181 (1984) (decided under former O.C.G.A. § 17-7-110).

- Witness whose name does not appear on the indictment at the time the case is called for trial, and who did not testify before the grand jury, and whose name was not furnished on demand by the prosecuting attorney to the defendant may nevertheless be sworn as a witness for the state in the trial of a case. Smith v. State, 74 Ga. App. 777, 41 S.E.2d 541, cert. denied, 332 U.S. 772, 68 S. Ct. 86, 92 L. Ed. 357 (1947) (decided under former Code 1933, § 27-1403).

- If, under the circumstances, the purposes of this section are met, or if the relief sought exceeds the relief sufficient to satisfy those purposes, or if the error is harmless, reversal is not required even though an unlisted witness is allowed to testify in contravention of that section. Huff v. State, 141 Ga. App. 66, 232 S.E.2d 403 (1977) (decided under former Code 1933, § 27-1403).

- Failure through inadvertence to give a defendant a correct list of witnesses, as when the name of one is omitted, is not cause for a mistrial of the case, especially if the testimony of the witness omitted is stricken from the record. Moore v. State, 25 Ga. App. 251, 102 S.E. 916, cert. denied, 25 Ga. App. 172 (1920) (decided under Penal Code 1910, § 970).

- Prosecution's failure to provide a written list is plainly harmless if defense counsel acknowledges actual notice of the witnesses eight days before trial, and never alleges prejudice of any kind whatever from the fact that the notification was oral and not written. Newman v. State, 237 Ga. 376, 228 S.E.2d 790 (1976) (decided under former Code 1933, § 27-1403).

- Since the state made no showing in the record that the appellant was otherwise put on notice as to the witnesses to be called or that the appellant could not have been prejudiced thereby, the late furnishing of the witness list warrants a continuance. Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 27-1403).

- Trial court properly permitted a witness who was not listed to testify since, although the defendant's trial counsel was appointed only a week before, the defendant nevertheless was represented by other counsel at the time of arraignment and the defendant, in making an objection, did not request a continuance or otherwise seek an opportunity to conduct an interview prior to the witness being called to testify. Tyus v. State, 196 Ga. App. 857, 397 S.E.2d 194 (1990) (decided under former O.C.G.A. § 17-7-110).

- If counsel for the defendant is given the opportunity to and does interview the unlisted witness before the witness is allowed to testify, the purpose of this section is satisfied. Butler v. State, 139 Ga. App. 92, 227 S.E.2d 889 (1976) (decided under former Code 1933, § 27-1403).

If defense counsel is furnished, prior to trial, with the name of a witness, incorrectly spelled, as well as the witness's telephone number and address, and the trial court recesses the trial to allow defense counsel the opportunity to interview the witness, but before the witness testifies, defense counsel makes no motion for continuance or other time-gaining procedure, the defendant shows no prejudice to the defendant's rights in that the purpose of this section was substantially satisfied. King v. State, 147 Ga. App. 38, 248 S.E.2d 4 (1978) (decided under former Code 1933, § 27-1403).

If defense counsel knows of the existence of a witness not on the state's list and is given the opportunity to talk to the witness prior to trial, the witness may be allowed to testify. Stansifer v. State, 166 Ga. App. 785, 305 S.E.2d 481 (1983), but see Hatcher v. State, 224 Ga. App. 747, 482 S.E.2d 443 (1997); Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502 (1998) (decided under former O.C.G.A. § 17-7-110).

When the trial court allows a defendant an opportunity to interview "unlisted" witnesses, the purpose of former O.C.G.A. § 17-7-110 was satisfied and the trial court properly allowed the witnesses to testify. White v. State, 253 Ga. 106, 317 S.E.2d 196 (1984); Boscaino v. State, 186 Ga. App. 133, 366 S.E.2d 789, cert. denied, 186 Ga. App. 917, 366 S.E.2d 789 (1988); Moss v. State, 196 Ga. App. 81, 395 S.E.2d 363 (1990); Summerour v. State, 211 Ga. App. 65, 438 S.E.2d 176 (1993) (decided under former O.C.G.A. § 17-7-110).

Trial court did not err in offering the defendant a reasonable time to interview an expert witness not included on the list of witnesses and to obtain an expert witness of the defendant's choice or in refusing to exclude the witness's testimony when the defendant refused the offer. Johnson v. State, 171 Ga. App. 91, 318 S.E.2d 799 (1984) (decided under former O.C.G.A. § 17-7-110).

Although the state failed to include the witness's name on the list of witnesses, the purpose of former O.C.G.A. § 17-7-110 was met since the trial court allowed counsel for the defendant to interview the witness before the witness was called to testify. Kickery v. State, 185 Ga. App. 274, 363 S.E.2d 805 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 805 (1988) (decided under former O.C.G.A. § 17-7-110).

State witness was properly allowed to testify even though the witness's name was not on the list of witnesses provided to the defendant since the witness had only become known to the prosecutor within the preceding 72 hours and defense counsel acknowledged that counsel interviewed the witness prior to trial. McIntosh v. State, 185 Ga. App. 612, 365 S.E.2d 454, cert. denied, 185 Ga. App. 910, 365 S.E.2d 454 (1988) (decided under former O.C.G.A. § 17-7-110).

Admission of testimony by a witness is admissible even though the witness's name does not appear on a list of witnesses furnished by the prosecution to the defense since: (1) the name of the witness appeared in an allegation in an indictment charging the defendant; (2) the defendant did not file a demand for a list of witnesses prior to an arraignment; (3) the prosecutor provided the name of the witness to the defendant in a notice of intent to present evidence of similar transactions; and (4) the defendant did not request a continuance or otherwise seek an opportunity to interview the witness prior to trial. State v. McBride, 258 Ga. 321, 368 S.E.2d 758 (1988); Ronskowsky v. State, 190 Ga. App. 147, 378 S.E.2d 185 (1989) (decided under former O.C.G.A. § 17-7-110).

Allowing the state to call two police officers whose names were not on the list of witnesses was not error since the names were contained in the state's file, which was made available to defendant's counsel and was examined by counsel prior to trial. Wade v. State, 198 Ga. App. 15, 400 S.E.2d 377 (1990) (decided under former O.C.G.A. § 17-7-110).

When the identity and involvement of a witness was otherwise disclosed to the defendant in discovery and was provided to the defendant by the state, the purpose of former O.C.G.A. § 17-7-110 was duly served and no error laid in permitting the state to call such a witness even though he or she was not listed as a witness in response to a demand pursuant to the statute. Gossett v. State, 199 Ga. App. 286, 404 S.E.2d 595, cert. denied, 199 Ga. App. 906, 404 S.E.2d 595 (1991) (decided under former O.C.G.A. § 17-7-110).

Trial court in the court's discretion may allow an unlisted witness to testify upon giving the defense an opportunity to interview the witness prior to the time the witness testifies. Willis v. State, 202 Ga. App. 447, 414 S.E.2d 681 (1992) (decided under former O.C.G.A. § 17-7-110).

- Coindictee, charged with committing the robbery with the defendant, may be allowed to testify even though the coindictee's name was not on the list of witnesses provided to the defendant. Wright v. State, 167 Ga. App. 445, 306 S.E.2d 428 (1983) (decided under former O.C.G.A. § 17-7-110).

If a coindictee testified as a state witness even though the coindictee's name was not included on the list of witnesses prepared by the state, information that the coindictee was available for interviews by defense counsel prior to trial and that the attorneys representing the defendants had met with the coindictee for approximately one hour reinforced a finding of lack of surprise on the part of the defendants at the coindictee's appearance at trial on behalf of the state. Graham v. State, 171 Ga. App. 242, 319 S.E.2d 484 (1984) (decided under former O.C.G.A. § 17-7-110).

- It was not error to permit a codefendant whose name appeared on the indictment to testify although the codefendant's name was not furnished to the defense as required by former O.C.G.A. § 17-7-110. Lawrence v. State, 174 Ga. App. 788, 331 S.E.2d 600 (1985) (decided under former O.C.G.A. § 17-7-110).

Calling unlisted witness in criminal trial in rebuttal is not error. Hearn v. State, 145 Ga. App. 469, 243 S.E.2d 728 (1978)(decided under former Code 1933, § 27-1403); Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982) (decided under former Code 1933, § 27-1403).

It is not error to allow a witness to testify whose name was not on the list of witnesses if that witness is called in rebuttal. Savage v. State, 152 Ga. App. 392, 263 S.E.2d 218 (1979)(decided under former Code 1933, § 27-1403); Hudgins v. State, 153 Ga. App. 603, 266 S.E.2d 284 (1980)(decided under former Code 1933, § 27-1403); Rowell v. State, 176 Ga. App. 309, 335 S.E.2d 689 (1985) (decided under former O.C.G.A. § 17-7-110).

It is not error to allow the state to call a witness in rebuttal even though the witness's name did not appear on the list of witnesses furnished to the defendant. Gibby v. State, 166 Ga. App. 413, 304 S.E.2d 518 (1983) (decided under former O.C.G.A. § 17-7-110).

Calling an unlisted witness in rebuttal is not error and does not violate former O.C.G.A. § 17-7-110. Forney v. State, 255 Ga. 316, 338 S.E.2d 252 (1986); Crosby v. State, 188 Ga. App. 191, 372 S.E.2d 471 (1988); Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568 (1990); Cook v. State, 199 Ga. App. 523, 405 S.E.2d 341 (1991); Snider v. State, 200 Ga. App. 12, 406 S.E.2d 542 (1991); Leatherwood v. State, 212 Ga. App. 342, 441 S.E.2d 813 (1994) (decided under former O.C.G.A. § 17-7-110).

Only material which creates a reasonable doubt as to guilt must be disclosed under a general request for anything exculpatory. Radford v. State, 251 Ga. 50, 302 S.E.2d 555 (1983) (decided under former O.C.G.A. § 17-7-110).

- Defendant was not unfairly surprised when the state substituted for a listed witness another department of public safety employee whose name had not been listed since the witness was qualified as a custodian of the records for the department and the primary purpose of the witness's testimony was merely to authenticate the defendant's driving records. Parks v. State, 180 Ga. App. 31, 348 S.E.2d 481 (1986) (decided under former O.C.G.A. § 17-7-110).

- Although the name of a witness for the state was inadvertently left off the witness list, defense counsel's interview of the witness prior to the witness being called to the stand and the trial judge's offer to allow defense counsel to call the witness back and to have further extensive cross-examination or more time sufficiently satisfied the purpose of former Code 1933, § 27-1403. Cates v. State, 245 Ga. 30, 262 S.E.2d 796 (1980) (decided under former Code 1933, § 27-1403).

- If the prosecution amends the list of witnesses after voir dire of the witnesses had been completed and the defendant makes a motion that the substitute witness not be allowed to testify, or that the defense be granted a continuance in order to investigate the witness's proposed testimony and if the court gives the defense the opportunity to interrogate the witness prior to testifying, the court is not in error if the court overrules the defendant's motion for a continuance on the basis of the amended witness list. Legare v. State, 243 Ga. 744, 257 S.E.2d 247, cert. denied, 444 U.S. 984, 100 S. Ct. 491, 62 L. Ed. 2d 413 (1979) (decided under former Code 1933, § 27-1403).

- Allowing a party an opportunity to examine the witnesses outside of the jury's presence is an inadequate means of curing the state's failure to comply with the defendant's demand for a list of witnesses. Brown v. State, 242 Ga. 536, 250 S.E.2d 438 (1978) (decided under former Code 1933, § 27-1403).

- If two codefendants change their plea to guilty upon the case being called for trial, and offer their testimony against the defendant, there is no prejudice in admitting their testimony even if their names were listed in the defendant's indictment. Anderson v. State, 141 Ga. App. 249, 233 S.E.2d 240 (1977) (decided under former Code 1933, § 27-1403).

Allowing a codefendant to testify although the codefendant's name was not on the original list of witnesses is not error since it could not be maintained that the defendant was surprised or unable to interview through lack of knowledge of the witness. Lingerfelt v. State, 238 Ga. 355, 233 S.E.2d 356 (1977) (decided under former Code 1933, § 27-1403).

If the defendant has notice that a designated witness will testify about certain records, and the true custodian of the records is subsequently substituted to give identical testimony, no harm results to the defendant merely because the name of the true custodian wasn't on the witness list. Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976) (decided under former Code 1933, § 27-1403).

- Trial court did not err in admitting the testimony of an accomplice even though the state failed to list the accomplice as a witness because the defendant personally subpoenaed the accomplice as a witness and the accomplice testified the accomplice previously discussed the facts of the case with the defendant's counsel. Herndon v. State, 187 Ga. App. 77, 369 S.E.2d 264 (1988) (decided under former O.C.G.A. § 17-7-110).

- See Conley v. State, 258 Ga. 339, 368 S.E.2d 502 (1988) (decided under former O.C.G.A. § 17-7-110).

Even if the witnesses' names were not newly discovered, the overriding purpose of this section was to assure the defendant that the defendant will not be confronted at trial with the testimony of witnesses the defendant had not had time to interview prior to trial. Fleming v. State, 236 Ga. 434, 224 S.E.2d 15 (1976) (decided under former Code 1933, § 27-1403).

- Requirement that the accused, on demand, be furnished with a list of the state's witnesses is mandatory and it is error to permit a witness whose name is not on the list furnished to testify unless the solicitor (now district attorney) or prosecuting attorney shall state in the prosecutor's place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of the state's furnishing the defendant with a list of the witnesses. Huffaker v. State, 119 Ga. App. 742, 168 S.E.2d 895 (1969) (decided under former Code 1933, § 27-1403).

If the state's attorney does not state precisely that the evidence of rebuttal witnesses is newly discovered, but the state's attorney does state that it is evidence which the state attorney had no knowledge that the state's attorney would need at the time the state attorney furnished the list of witnesses, this rebuttal evidence would come within the exception of former Code 1933, § 27-1403. Yeomans v. State, 229 Ga. 488, 192 S.E.2d 362 (1972) (decided under former Code 1933, § 27-1403).

Because the state had no prior knowledge that the testimony of a witness would be needed for rebuttal at the time such list was furnished constitutes an exception under this section. Dagenhart v. State, 234 Ga. 809, 218 S.E.2d 607 (1975); Gibbons v. State, 136 Ga. App. 609, 222 S.E.2d 55 (1975), appeal dismissed, 237 Ga. 283, 227 S.E.2d 265 (1976); Smith v. State, 141 Ga. App. 720, 234 S.E.2d 385 (1977) (decided under former Code 1933, § 27-1403).

That investigating officers may have known of the witnesses does not impute such knowledge to the prosecuting attorney and does not preclude such witnesses from being newly discovered evidence. Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976) (decided under former Code 1933, § 27-1403).

- If the solicitor (now district attorney) states that the evidence is newly discovered because the witness had not been located until 6:30 of the morning of the trial, this is sufficient to meet the requirements of this section exception to consent of the defendant. Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 679, 62 L. Ed. 2d 653 (1980) (decided under former Code 1933, § 27-1403); Berry v. State, 268 Ga. 437, 490 S.E.2d 389 (1997);.

- Fact that a witness previously called by the state for the purpose of establishing venue is unable to testify definitely in that regard does not make another's testimony as to venue such newly discovered evidence as would justify admission without the defendant's consent under former Code 1933, § 27-1403. Heard v. State, 135 Ga. App. 687, 218 S.E.2d 867 (1975) (decided under former Code 1933, § 27-1403).

- Allowing defense counsel to interview newly discovered witnesses is clearly permitted as an alternative to a further continuance. Lakes v. State, 244 Ga. 217, 259 S.E.2d 469 (1979) (decided under former Code 1933, § 27-1403).

If the trial court has allowed a defendant the opportunity to interview a recently discovered and unlisted witness prior to the testimony, the purpose of former O.C.G.A. § 17-7-110 has been satisfied. Jones v. State, 181 Ga. App. 651, 353 S.E.2d 593 (1987) (decided under former O.C.G.A. § 17-7-110).

- There was no violation of the provisions of former O.C.G.A. § 17-7-110 requiring the state, on the defendant's demand, to provide a list of witnesses to be called at trial since the defendant's counsel discovered two days before trial that the witness on the list had another name, when it was established that the witness was also known by the other name, and that the defendant's counsel knew of the second name but made no showing that the defendant was unable to interview the witness in the remaining time and made no motion for a continuance in order to interview the witness. Gardner v. State, 172 Ga. App. 677, 324 S.E.2d 535 (1984) (decided under former O.C.G.A. § 17-7-110).

- Because the defendant was served with a supplemental witness list five days prior to trial, the defendant had a reasonable time in which to interview the witness, and in view of other circumstances, the purpose of former O.C.G.A. § 17-7-110 was satisfied. Alvin v. State, 253 Ga. 740, 325 S.E.2d 143 (1985), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006) (decided under former O.C.G.A. § 17-7-110).

- Although the trial court permitted testimony from a state's witness whose name had not been provided to the defendants prior to trial in accordance with the defendant's demand for a list of such witnesses made pursuant to former O.C.G.A. § 17-7-110, but the state's attorney stated that this evidence had not become known to the state's attorney until the morning it was offered and since the trial court provided defense counsel an opportunity to interview the witness before the witness testified, there was no error. Daniel v. State, 180 Ga. App. 179, 348 S.E.2d 720 (1986).

- When the prosecuting attorney stated that the prosecutor had been assured by a witness that the bill of sale was the original document, but when the prosecutor obtained the document just before the trial the prosecutor realized the document was not the original but a copy, and thereupon called the seller to the stand to prove the transaction and this witness testified in effect only that the copy bill of sale correctly delineated the transfer, such evidence, while not exactly newly discovered, was sufficiently within the spirit of this section as not to require a reversal. Elrod v. State, 128 Ga. App. 250, 196 S.E.2d 360 (1973) (decided under former Code 1933, § 27-1403).

- When a witness, a microanalyst, testified that the state learned the witness had received items from another microanalyst and not from a police officer, at which point the defendant objected as to the chain of custody of items, under the circumstances there was sufficient showing of surprise to warrant the trial court's action in allowing other microanalyst to testify even though that microanalyst's name was not on the list of witnesses. Harvey v. State, 165 Ga. App. 7, 299 S.E.2d 61 (1983) (decided under former O.C.G.A. § 17-7-110).

- Under the newly discovered evidence provision, the refusal of the trial court to grant a mistrial when the state produced a surprise witness about whom the jury had not been qualified, who was the son of the victim, who related that the defendant was the person who, on the night of the murder, had threatened to kill the witness's father for refusing to sell the defendant beer without the proper identification, was not error, where, when the son attended the first day of the trial and saw the defendants, the witness recognized the defendant as being the one who had made the threat, the witness revealed these facts to the state, the state decided to call the individual as a witness the next day, the defense was apprised of this fact, the trial court recessed to give the defendants two hours to interview this witness, and the trial did not commence until the next day, when this witness was vigorously cross-examined. Hughes v. State, 257 Ga. 200, 357 S.E.2d 80 (1987) (decided under former O.C.G.A. § 17-7-110).

Testimony of a witness was properly allowed even though the witness's name was not given to the defendants until four days after the trial began. The prosecutor stated that the prosecutor had discovered new evidence regarding the witness on the evening before the prosecutor furnished the witness's name to the defendants and the trial judge gave the defendants' attorney an opportunity to interview the witness. The fact that the witness would not cooperate with the attorney did not justify disallowing the witness's testimony. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991) (decided under former O.C.G.A. § 17-7-110).

It was not error to allow the testimony of a witness whose name was not included on the state's list of witnesses since the prosecutor stated that the prosecutor had no need to call the witness until the defendant's cross-examination of the cashier of the convenience store made it appear that another videotape of the robbery existed. Lattimore v. State, 203 Ga. App. 259, 416 S.E.2d 829 (1992) (decided under former O.C.G.A. § 17-7-110).

- The trial court did not err by permitting the state to call an unlisted out-of-state witness for rebuttal since the state had just learned of the witness's existence and had introduced the witness after the court had reconvened, originally in anticipation of the prosecution's medical examiner, but subsequently for the introduction of the unlisted witness, who, though in violation of the rule of sequestration, was properly called in light of the court's curative instructions thereto. Thomas v. State, 262 Ga. 754, 425 S.E.2d 872 (1993) (decided under former O.C.G.A. § 17-7-110).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 27-1403 and former Code Section 17-7-110, decided prior to its 1994 repeal by Ga. L. 1994, p. 1895, § 1, are included in the annotations for this Code section.

Section does not prohibit the addition of names to the list of witnesses, but does prohibit the witnesses from testifying, without the consent of the defendant, unless the witnesses' names appeared on the list given to the defendant. 1965-66 Op. Att'y Gen. No. 66-170 (decided under former Code 1933, § 27-1403).

Defendant in probate court is entitled to the discovery rights under O.C.G.A. §§ 17-7-110 [repealed] and17-7-211 [repealed]. 1986 Op. Att'y Gen. No. U86-13 (decided under former O.C.G.A. § 17-7-110).

RESEARCH REFERENCES

C.J.S.

- 22A C.J.S., Criminal Procedure and Rights of the Accused, § 382 et seq.

- Effect of unauthorized amendment of criminal information or indictment, 101 A.L.R. 1254.

Right of accused to bill of particulars, 5 A.L.R.2d 444.

Use of abbreviation in indictment or information, 92 A.L.R.3d 494.