118 Ga. 73 | Ga. | 1903
The accused was convicted of murder, and sentenced to death. He assigns error upon the refusal of the judge to grant him a new trial. Error is assigned upon the following charge of the court: “All confessions should be received with care and caution, not on account of the character of the testimony, but on account of the fact of their being transmitted through one or two different channels, liable to be some mistake as to what was said, and liable to be some mistake in repeating; but when a confession is made and stated to the jury by a credible witness, it is of the highest order of testimony. There can be but few higher sources of evidence than a confession voluntarily and freely made.” The assignments of error upon this charge are that the court expressed an opinion as to the weight that should be given to a confession, thereby withdrawing from the- jury the.right to consider what weight should be given to it; and that the court indirectly intimated that the witness who testified to the confession was credible, instead of leaving that question to the jury to decide. In Cook v. State, 11 Ga. 59, Judge Nisbet said: “As a general rule, the confessions of a party, freely and solemnly made, are the highest evidence. . So reasonable and well settled is this rule that exceptions to it, to be sustained, ought to rest upon the most unassailable grounds.” In Eberhart v. State, 47 Ga. 609, Judge McCay said: “ A confession in open court is evidence even of treason, and it is a sound rule of law and of common sense that a free confession is very strong evidence of guilt.” But it must be remembered, as was said in Savannah Railway Co. v. Evans, 115 Ga. 318: “There are many things said by this court, both in headnotes and opinions, that are sound law, but which nevertheless would be improper instructions to a jury. This court . . may use language which would be appropriate in a headnote or opinion, but which would be grossly improper when embodied in a charge to a jury.” See also Florida Central Railroad Co. v. Lucas, 110 Ga. 127-128. In Hunter v. State, 43 Ga. 484, 523 (4), it was held that it is not the duty of a judge to classify evidence as to its weight or consideration, or to intimate any opinion thereon. In that case counsel for the State contended that confessions were the highest species of evidence, while counsel for the accused insisted that under the rule laid down in the code they were not; and the court refused to give in charge to the jury a request of counsel for the accused
In the case of Merritt v. State. 107 Ga. 675, 679, error was assigned upon the following charge: “Evidence of certain physicians has been admitted, which was offered for the purpose, as you understand, of showing she was a virtuous woman. The law makes-the opinion of experts — as they are called experts on any question of science — makes that sort of evidence admissible. The value of that testimony, gentlemen, is dependent upon the degree of the experience and honesty and the impartiality of the witnesses who-testified,and its weight varies in proportion as they are experienced, honest, and impartial. Where these elements are undoubted, their testimony is entitled to great weight and consideration; but,gentlemen, it is not so binding, not so authoritative, that you, the jury, are bound by it. It is intended to aid you in coming to a correct conclusion.” It was held that this charge was erroneous notwithstanding it was almost in the exact language of a headnote in the case of Choice v. State, 31 Ga. 425; Mr. Justice Lewis in the opinion saying: “ Ordinarily a court should not instruct the jury what particular testimony before them is, or is not, entitled to great weight or consideration, especially where there is no statute or rule of law stating that the particular testimony in question should be considered by the jury as being of great weight.” See also, in this connection, Raleigh & Gaston Railroad Co. v. Allen, 106 Ga. 572; Ryder v. State, 100 Ga. 529 (6), 533; Phœnix Insurance Co. v. Gray, 113 Ga. 424; Wall v. State, 112 Ga. 336 (2). In Bourquin v. Bourquin, 110 Ga. 440 (3), it was held that it is not proper for the judge to inform a jury that particular evidence is entitled to great consideration, but he should leave them free to determine for themselves the weight to be given it. In that case one of the questions was whether a deed had been delivered, and the court was requested to charge the jury that the record of a deed by the grantor was entitled to great consideration. It was held not to be error to refuse to give this request; it being there said: “ It is not proper for a judge to instruct the jury -that particular evidence is entitled to great weight or great consideration. This is a matter entirely for them. One juror might give certain evidence great consideration and another might think it entitled to but little
In the present case the accused in his statement denied that he was the slayer. One witness and only one testified to a confession. This testimony showed a full and complete confession by the accused that he was the perpetrator of the crime. While the State did not rely entirely upon the testimony of this witness, it is apparent that he was an important witness in the case. The effect of the judge’s charge was to single out this witness and call especial attention to him and indicate to the jury that the character of testimony which he had offered was “of the highest order,” and that there were “ but few' higher sources of evidence.” We think this error was calculated to prejudice the accused, especially when taken in connection with the fact that tlie judge emphasized in his charge that a confession is entitled to this weight when testified to “ by a credible witness.” This language was calculated to impress upon the minds of the jury that the particular witness was credible, and, when coupled with the statement that his testimony was worthy of high consideration, it was calculated to operate greatly to the prejudice of the accused, and constituted sufficient cause for a new trial. The ruling made in Mercer v. State, 17 Ga. 169, is distinguishable’from the one now made. While in that case the' judge charged the jury that a confession freely and voluntarily
In the course of his charge to the jury the judge said: “ There is another thing that it is not inopportune, as a matter of law, to • call the attention of jurors to, and of everybody else as well as the jury. It is unlawful for a man to kill a woman with whom he is living, and who is not his wife, because she sees proper to leave him. It is unlawful for him to kill her because he suspects or believes that she has been guilty of similar conduct with other men — similar to what she has been guilty of with him. He has no superior right in law to her. She is not his wife, and other men — if there are other men with whom she has engaged in illicit intercourse — have just as much right to kill him as he has to kill them. Neither one of them has any right to kill her on account of it. It is a violation of law to sustain such relations, and the law puts no protection around parties who engage in any such life. Barbaric rage and fury towards a woman will not justify men.
In referring to the recommendation of the jury to life imprisonment, the judge said: “You can do that for any reason you may see proper; it is a right given you without any limitation.” It is complained that this charge was error, for the reason that the jury had a right to exercise arbitrarily their discretion to reduce the punishment from death to life imprisonment. We do not think there was any error in this charge. It is true the jury have the absolute right to determine the question of punishment, and that their decision is not subject to be reviewed by the courts in any way. Still it is not expected that the jury would make the recommendation without some reason. What that reason may be is entirely immaterial if it is satisfactory to them, but they must necessarily be actuated by some reason. In the case of Perry v. State, 102 Ga. 365, while there was some difference of opinion among the members of the court as to some of the questions involved, there was really no substantial difference on this question. See the remarks of Mr. Presiding Justice Lumpkin on pages 379-380, and those of the dissenting Justices on page 386.
The judge inadvertently failed to give to the jury the form of their verdict in case they should acquit the accused, but, upon his
It is complained that in one part of the charge the judge used language which in effect told the jury that the accused was the perpetrator of the offense. Of course, if the language was calculated to have this impression, it was erroneous, because the statement of the accused was in effect a denial that he was the slayer. Similar language will probably not be used upon another trial. There are numerous assignments of error upon failures to charge upon different subjects. Even if there was any merit in any of these assignments, the omissions will doubtless be supplied on another trial.
Judgment reversed.