115 Ga. 547 | Ga. | 1902
Lead Opinion
1. It is not error to overrule a motion for a new trial on a ground which, substantially stated, is as follows: A request to charge the jury in writing having been properly made, the judge received from the clerk’s office a copy of the charge given by him on a former trial of the case, made certain pencil changes therein, and attached thereto a number of written requests to charge. So prepared the charge was read, and the same handed to the clerk as soon as delivered. The charge so prepared contained all the instructions given to the jury. Subsequently, after the verdict was rendered, the judge had the official stenographer to copy this charge, which, copy he verified. The pencil changes and additions were then erased from the original, which was returned to the clerk as part of the record of the first
(а) Under the facts above stated, the statute requiring written charges to be given was substantially complied with.
(б) The facts set out above do not constitute a good ground of a motion for anew trial, for the reason that the conduct of the judge of which complaint is made occurred after the verdict had been returned and the trial had ended.
2. No error sufficiently material to require the grant of a new trial appears to have been committed.
Dissenting Opinion
dissenting. There is no difference between my brethren and myself as to the correctness of the rulings made by the trial judge in overruling the motion for a new trial, except as to-that ground of the motion which is set out substantially in the first headnote preceding this opinion; and we all agree that no cause for setting aside the verdict appears in any other of the very numerous grounds of the motion. If any error was committed by the trial judge, as indicated in such grounds, it was immaterial, and should not cause a judgment of reversal. Following the well-understood rule of this court that where the judgment on the main bill of exceptions is affirmed the cross-bill will be dismissed, the merits of the exceptions taken in the cross-bill are not considered by the majority of the court. The conclusions which my brethren have reached, and to the correctness of which I can not assent, are, first, that the trial judge complied with the statute and gave to the jury on the trial of this case his charge in writing; second, that even if this were not true, the plaintiff in error is complaining of the action of the judge which was taken after the trial, after verdict and after judgment. Having thus stated the conclusions reached by a majority of the court, I wilT'now proceed to give the reasons which impel me to believe that the judgment overruling the motion for a new trial should be reversed, because the court erred, after being requested to charge the jury in writing, in adopting the method set-out in the first of the preceding headnotes.
The Civil Code, § 4318, requires that the judges on the trial of' all civil cases shall charge the jury in writing; “that is to say,, shall write out their charges and read the same to the jury, when the counsel for either party shall require them to do so; and it-shall be error for such judge to give any other or additional charge than that so written out and read.” Section 4319 declares that “ The charge, so written out and read as aforesaid, shall be filed, as-soon as delivered, with the clerk of the court in which the same was given, and shall be^ accessible to all persons interested in the same; and the clerk shall give certified copies thereof to any person applying for the same, upon the payment of the usual fee.” In 'construing the last section referred to, this court ruled in the case of Jones v. State, 65 Ga. 506, that when such charge is written out and read to the jury, it then becomes an office paper. This-court also in several cases has had occasion to construe the two-sections of the code which I have cited. They a.re founded on an act passed in 1860; hence have been the law in this State for more than forty years. In the case of Fry v. Shehee, 55 Ga. 208, Jackson, J., in delivering the opinion of this court said: “ Our Code is very plain. The judge is positively required to put his charge in writing on the demand of either party; and he is required to file-this written charge in office for the inspection of all concerned. . . The great object of the statute is to prevent disputes between the judge and counsel as to what was the charge; and the only way to-prevent them is to require the courts to conform rigidly to the statute.” In the case of Harris v. McArthur, 90 Ga. 216, it was ruled that where the defendants had requested the presiding judge to give his charge in writing, it was error not to write out and read to the jury whatever instructions the court had to give them, and likewise error to direct orally a verdict for the plaintiff against the: defendant for a specific sum, and have a member of the jury to sign as foreman accordingly. In Burns v. State, 89 Ga. 527, where the presiding judge was requested to charge the jury in writing, it was ruled to be error for him to even instruct the jury orally as to the form of their verdict, instead of writing out and
I have referred to these cases for the purpose of showing that not only have these provisions of our law been deemed to be important, but they have been uniformly construed so as to accomplish the purpose which they were intended to subserve, and have been enforced in their very spirit. It will be noted that the second section referred to requires that the charge so written and read shall be filed with the clerk as soon as delivered, and shall be accessible to all persons interested in the same. The filing of a written charge in a manner which does not make it accessible to all persons concerned is not a compliance with this statute. 'What; benefit would a party derive from the law if the charge was written out and filed, but withheld from him ? In the present case it appears that the trial judge, when requested to put his charge in writing, took the record of his charge delivered in the first trial of the case; that he made certain additions in pencil, and attached a number of pages of written requests to charge, and that the charge so prepared was actually read to the jury and delivered to the clerk. This may have been (in that all he delivered was in writing) a compliance with the letter of the statute; but in all events,
Error is assigned by the defendant in error, in a cross-bill. She excepts to the order of the trial judge, made at the hearing of the motion for a new trial, by which the response to the rule nisi, and certain affidavits accompanying, were disallowed and stricken. These affidavits related to the inaccessibility to the process of the court of one of the witnesses whose evidence, taken on a former trial, was allowed to be read by the plaintiff, over the objection of the defendant, at the trial, after the submission of evidence to the presiding judge. This evidence could not have been read in the absence of the finding by the judge that the witness was inaccessible in the sense of the statute. Necessarily that finding was based on the evidence submitted when the plaintiff offered to read it. If the evidence was not sufficient to authorize that finding, the judge erred in allowing it to be read. If it was error then, the affidavits submitted at the hearing could not, however strong they might be, cure that error. See Fletcher v. Collins, 111 Ga. 253 (7), (8). In order to determine whether the judge erred in the ruling complained of, the question whether or not the witness was inaccessible can be determined alone by a consideration of the evidence submitted when it was offered during the trial. Evidence as to that question of fact, subsequently submitted, can have no effect. Eor myself, I question the propriety of admitting, on the hearing of a motion for a new trial, additional or cumulative evidence on any question passed on by the judge, and I think that the admissibility of additional evidence on such hearing should be confined to those questions made in the motion, of which the judge' had no knowledge, which did not arise in the progress of the case, and on which he did not pass. There was no error in striking the response, and the affidavits submitted.
Jxulgment on the main bill of exceptions affirmed; cross-bill dismissed.