10 Ga. App. 24 | Ga. Ct. App. | 1911
1. The defendant was convicted of assault and battery, in. the criminal court of Atlanta. He took the ease to the superior court by certiorari; the certiorari -was overruled, and he excepts to that judgment.
From the evidence it appears that the defendant’s brother, several days before the alleged assault, had been arrested for selling intoxicating liquor. The defendant and the brother met the policeman who had made the arrest, and the defendant caught him by the arm and said: “What in the hell did you mean by turning up my brother?” The defendant and the brother then caught the policeman by each arm, and the three walked down the street until they came to a street corner, near, which there is a dark underpass. While they were walking down the street, several other boys were in the rear, yelling, “Kill him! Hit him! Knock him in the head!” When the corner was reached the policeman refused to go any farther, whereupon he was struck in the head with some hard substance like knuclcs. The blow came from the rear, and the policeman could not tell who hit him. At the trial in the recorder’s court the defendant admitted that he did it. In his statement during the present trial he failed to deny any of the facts stated above, except the actual hitting, and explained that the reason he took all the blame in the recorder’s court was because he thought the fine there imposed would be the end of the matter. Under the undisputed evidence the defendant was guilty. The jury were authorized to infer that seizing the policeman’s arm in anger (as evidenced by the language used) was an assault and
2. The only other error complained of in the petition for certiorari is that during the argument to the jury trying the case the judge of the criminal court absented himself from the court-room for a few proments without the consent of counsel and without suspending the trial. He was all the time within hearing of what was taking place in the court-room. We do not approve the judge’s conduct, but neither the defendant nor his attorney made any objection at the time. It is undoubtedly true that the trial should be had in the immediate presence of the judge, and when he wishes to leave the bench for any purpose, even for the briefest space of time, he should suspend the trial. As Judge Bleckley say's: “His immediate presence tends to preserve the legal solemnity and security of trial, and upholds the majesty of law.” Hayes v. State, 58 Ga. 35, 49. In the case of Horne v. Rogers, 110 Ga. 362, 370 (35 S. E. 715, 49 L. R. A. 176), Justice Cobb made a thorough review of all the cases on the subject and said: “The mere absence of the judge during the progress of the trial, when no objection is made, will not necessarily require the granting of a new trial, when the absence is only for a few moments and for a necessary purpose; and, in order for such absence to become reversible error, it must appear, not only that objection was made to the judge’s failure to suspend the trial, but that the absence 1 of the judge resulted in some harm to the losing party. . . If - it were an open question,1 we would hold that the presence of the judge at all stages of the trial is absolutely necessary to its validity, and that the absence of the judge from the trial without suspending the same for any length of time, no matter how short, or for any purpose, no matter how urgent, would vitiate the whole proceeding, whether objection was made by the parties interested or not,-and whether injury resulted to any one or not. The judge' is such a necessary part of the court that his absence destroys the existence of the tribunal, and public policy demands that the tribunal authorized to pass upon the life, liberty, and property of the citizen should be constituted during the entire trial in the manner prescribed by law. The great weight of authority is in harmony
In view of the fact that the evidence in this case practically demands a verdict of guilty, and that no objection was made to the irregularity at the time, the conduct of the judge is not cause for a new trial. . Judgment affirmed.
