86 Ga. 401 | Ga. | 1890
Bennett was tried for tbe offence of burglary, and was convicted. He made a motion for a new trial, which was refused, and be excepted. One of tbe grounds of
“ The first ground of the motion for new trial is true with the following additional statement in connection with what occurred and in explanation thereof: In his argument before the jury defendant’s counsel had stated and reiterated repeatedly, (1) his personal conviction that the defendant was an honest man and a man of good character, and that nothing criminal had ever before been charged against him; (2) that the defendant was a man of as good a character as Bowers, one of the State’s witnesses, and stood as well in the community as Bowers did; (8) that Duncan, a witness for the State, was a man of good character and had employed defendant for six years, and that Duncan would not have done so if defendant was a thief; and (4) that defendant stood well among his neighbors and was regarded where he lived as an honest man and one of good character, so far as the evidence in this case disclosed. In replying to these arguments the solicitor-general said, in doubtful cases, in cases where the State had proved many suspicious facts and circumstances against a defendant, the law allowed him to prove his good character, and that if this defendant was a man of such good character and reputation as his counsel had insisted he was, why had he not called some of his neighbors to prove his good character ? and that his failure to .do so must be because he had no such good reputation. When the point was made that this argument was improper, the court refused to interrupt the solicitor-general, because of the fact that defendant’s counsel had made the statements above mentioned.
We think the court erred in allowing the State’s counsel to argue before the jury, after objection, by the prisoner’s counsel, that the defendant’s character was
The State is bound to prove the guilt of a defendant beyond a reasonable doubt, whether his character has been good or bad. It does not follow because an accused person may have a bad character, that he is guilty of the particular oflence for which he is being tried. Counsel both for the State and the accused, should be compelled by the court to confine themselves in their arguments to the evidence in the case. In this State the defendant has a right to make a statement of his defence to the jury, and it has been held in several cases that the State’s counsel, where the defendant omitted to make such statement, had no right to argue that fact to the jury. Nor can the jury infer guilt from the defendant’s omission to make the statement. If the State’s counsel is not allowed to argue this fact to the jury, why should he be permitted to argue that the omission to prove good character is evidence of bad character? Why should the jury be permitted to infer that his character is bad because he has omitted to prove good character?
The trial judge, however, certifies that he permitted the State’s counsel to make this argument because the
There are many authorities which hold that the law presumes that a defendant has a good character. This was held in the case of Stephens v. The State, 20 Tex. App. 269; and in the case of Cluck v. The State, supra, the Supreme Court of Indiana held that the law presumes that every man has a good character, and that it would have been competent for counsel to have commented on such presumption. This rule is also laid down in Sackett on Instructions to Juries, p. 651. In the case of Goggans v. Monroe, 31 Ga. 331, the defendant’s counsel in his argument insisted that the plaintiff’s character was bad; whereupon counsel for the plaintiff requested the court to charge the jury that the law presumed the plaintiff to be of good character until the contrary was shown by proof. The trial judge refused to charge as requested, and this court held that “it was error in the court to refuse to charge on request
But whether this be true or not, we hold that the court erred in allowing the State’s counsel, over the objection of the prisoner’s counsel, to make this argument to the jury, although the latter had first violated the rules of court by going outside of the evidence. The fact that the prisoner’s counsel had violated the rule, would not authorize the State’s counsel to do likewise. To hold that because counsel on one side violates a rule of court in his address to the jury by making statements outside of the evidence, the opposing counsel has the right to violate the rule in like manner, over objections of opposing counsel, would be to turn a court, where justice should be administered according to the rules of evidence and of law, into a town-meeting. ¥e could as well hold that if the prisoner’s counsel introduces illegal evidence, the State’s counsel can reply by introducing other illegal evidence; and this, we have held, cannot be done. Woolfolk v. The State, 81 Ga. 551. In the case of Mitchum v. The State, 11 Ga. 615, one of- the grounds of the motion for a new trial was, that the court erred in allowing the solicitor-general, in the concluding argument, although objected to by counsel for the accused, to support the testimony of JEilands by statingThat he was an unwilling witness for the State, that he had refused to come under subpoena, and was brought by arrest under attachment,
The proper practice, according to the majority of the cases above cited, would have been for the prisoner’s counsel to have requested the court to charge the law contrary to that as asserted by the solicitor-general in his address to the jury. The record shows, however, that he did object to the remarks of the solicitor-general and requested the court to stop him, but that the court refused to do so, holding that the remarks were proper, and thereby giving the jury to understand that the rule of law laid down by the solicitor-general
Judgment reversed.