23 Ga. App. 359 | Ga. Ct. App. | 1919
Lead Opinion
The defendant was charged with the larceny of one bushel of corn in the shuck, the property of the prosecutor, O. P. Aiken. Hpon the trial the undisputed testimony of a witness for the State showed that he caught the defendant in the prosecutor’s-corn-field, about nine of ten o’clock at night; that he saw the defendant break off more than a bushel of ears of corn and put them in a sack. The undisputed testimony of the prosecutor, Aiken, was that the stolen corn was his. He further testified that he rented from W. H. Smith, the land upon which the corn was grown, and that Smith was to get half of the corn raised thereon, for the rent of the land, but that it was his (Aiken’s) corn until it was made and gathered. It clearly appears from the record and a fair inference therefrom that, when Aiken had given this testimony, counsel for the defendant made a motion that the defendant be discharged, or that a verdict of acquittal be directed, or some similar motion, on the ground that the evidence of Aiken showed that a-half of the ' corn belonged to Smith, his landlord, and that therefore the allegations in the accusation as to the ownership of the stolen property were not sustained by the proof. The judge, in passing upon this motion, and denying it, said: “I will have to rule this is Mr. Aiken’s corn, under the testimony.” This language was excepted to -by the defendant as an expression of opinion to the jury on a material issue in the case, in violation of section 1058. of the Penal Code. „
We do not think the provisions of that section apply to the facts
In Oliveros v. State, 120 Ga. 237 (47 S. E. 627, 1 Ann. Cas. 114), Simmons, C. J., said: “Expression of opinion as to the weight of evidence may or may not be error, according to the circumstances under which the opinion is expressed; but even where error, it need not be a violation of the Civil Code, § 4334. Again, speaking for myself, I think this court has given this section too broad and liberal a construction. It was doubtless enacted to correct a custom .of the judges which had descended-to them from the common-law courts of England and this country, but which the legislature, thought was a usurpation of the functions of the jury. Whether this be true or not, we all think that when an objection is made to evidence offered, the judge has a right, if he deems proper, to give the reasons for his decision on the objections; and such reasons so given, if pertinent to the objections made, do not constitute such an expression of opinion as to violate the code section above cited.” (Italics ours.) Moreover, it has been held that even where the expression of the judged opinion occurs during his charge .to the jury this does not necessarily require the grant of a new trial. In Southern Insurance & Trust Co. v. Lewis, 42 Ga. 587, which was a suit on an insurance policy, the judge charged the jury that, in his opinion, the plaintiff had an insurable 'interest in the policy, and the Supreme 'Court, while stating that this was improper and that the judge ought to have called the attention of the jury to the facts and then said to them, “if you believe,” etc., “then, in the opinion of the court, under the law, you will find that he had an insurable interest,” nevertheless ruled that under the facts of the ease—the ease being clearly made out—this error was not sufficient ground for a reversal of the judgment. In Dexter Banking Co. v. McCook, 7 Ga. App. 436 (67 S. E. 113), this court held that
The undisputed evidence in the instant case showed that the relation of landlord and tenant existed between the prosecutor, Aiken, and W. H. Smith, the owner of the land cultivated by Aiken aisd. upon which the stolen corn was grown, and that Aiken was the tenant. It was further undisputedly shown that at the time of the larceny the corn had not been gathered, but was in the shuck and upon the stalks in the field. It followed, therefore, as a matter of law, that the title to the corn was in Aiken and not in Smith. Teel v. State, 7 Ga. App. 600 (67 S. E. 699). Clearly, therefore, the contention of the defendant’s counsel, made to the trial judge during the progress of the case, that the defendant could not be legally convicted, since the proof of the ownership of the stolen property did not correspond with the allegations of ownership in the accusation, and his motion that the defendant be discharged, or that a verdict be directed in his favor, or some other motion of the same import, was without merit and was properly denied by the judge. In passing upon this motion, and in stating his reasons for his ruling thereon, the judge necessarily had to pass upon the evidence which had” been introduced, and to express his opinion thereon, and, under the authorities above cited, the case falls within the exception stated in the headnote.
Moreover, aside from the precedents cited, the 'particular facts of this case show that the granting of a new trial would be a mere idle and useless ceremony and of no benefit whatever to the accused, since no other verdict than the one returned is legally possible on another trial. The defendant introduced no evidence and made no statement; no exception to the charge of the court, as to errors, either of omission or commission, was made;,no exception to any ruling of the court upon the admission or exclusion of evidence was made; the undisputed evidence showed that the defendant was caught in the very act of the larceny charged, and that he made a free and voluntary confession of his guilt. No other verdict than the one rendered could possibly have-been reached by the jury. The statement of the court, complained of, did not, therefore, prejudice or injure the cause of the defendant.. We do not believe it was the.
Judgment affirmed.
Dissenting Opinion
dissenting.
This was a conviction for simple larceny, the accusation alleging that the property stolen was one bushel of corn in the shuck, of the value of $2, and the property of O. P. Aiken. The evidence of Mr. Aiken was: “It was my corn. It was my corn until it was made and gathered. Part of the corn was Mr. Smith’s. . . He was to get part of the crop. He was to get one half of it.” 'Hpon a ruling upon a. motion made by defendant’s counsel the trial judge, in the presence of the jury, remarked, “I will have to rule this is Mr. Aiken’s corn, under this testimony.”
Section 1058 of the Penal Code of 1910, codified from what is commonly called the “dumb act,” says: “It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such ease reversed, and a new trial granted, with such directions as the Supreme Court may lawfully give.” This applies to trials in the city court of Jefferson (Acts 1903, p. 138). It is made mandatory on the Court of Appeals to grant a new trial when the trial judge expressed his opinion on the facts. This rule is not altered merely because the fact stated as proved by the trial judge stands uncontradicted by testimony. The truth or falsity of the. .alleged fact is put in issue by the defendant’s plea of-not guilty, which plea is a denial of each and every allegation in the indictment against him. He is presumed to be innocent, and this presumption remains with him throughout the trial and until after the rendition of a verdict against him. His plea of “not guilty” and this presumption of innocence continue throughout the entire trial to challenge and deny the case of the State as alleged in the indictment and made in the evidence. Where there is no admission in judicib, the uncontradicted evidence of the State is thus denied and an issue of fact is made.
-It was a violation of this section of the code for the trial, judge to state, in the presence of the jury, that this statement of a wit
Although the evidence demands a verdict of guilty, the law commands that it be set, aside. The trial judge should have kept dumb as the statute requires. It was not at all essential to his ruling upon the motion made by counsel for defendant for him to express himself on the facts as he did. We are enjoined in mandatory terms to set this conviction aside. Mandatory statutes must be obeyed, not evaded.