142 Ga. 611 | Ga. | 1914
In Harris & Mitchell v. McArthur, 90 Ga. 217 (15 S. E. 758), the fourth headnote reads as follows: “The defendants below having requested the presiding judge on the final trial to give his charge to the jury in writing, it was error not to write out and read to the jury whatever instructions the court had to give them, and to direct orally a verdict for the plaintiff against the defendants for a specified sum and require a member of the jury to sign as foreman a verdict accordingly. The words ‘charges’ and ‘charge’ in section 244 of the code embrace any and all final instructions addressed by the court to the jury for the purpose of governing their action in making or aiding to make a final disposition of the case in favor of one litigant or the other.” This is a direct ruling on the question propounded by the Court of Appeals. The only question is whether this court will adhere to that decision or will reverse it. It might be sufficient to say, that it was a unanimous decision rendered at a time when the Supreme Court consisted of three Justices; and that by the statute it requires the concurrence bjr five Justices of this court (now consisting of six Justices) to reverse it. The writer deems it not improper to say that the decision above cited does not stand-alone. By the Civil Code (1910), § 4847, it is declared: “The judges of the superior courts of this State shall, in all cases of felony, and on the trial of all civil cases tried before them, give their charges to 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
In Fry v. Shehee, 55 Ga. 208, Jackson, J., 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. How can he file a written charge in office, when a part of it only is written and the rest is in his memory? 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 Wheatley v. West, 61 Ga. 401, 408, Bleckley, J., said: “These sections of the Code stand as a kind of constitutional law between bench and bar. They entitle the counsel to have the written word, instead of oral tradition. They provide for preserving and handing down the word as a sure and enduring memorial of what was actually delivered. There is to be no controversy over the text of the charge; no uncertainty as to what revelation fell from the bench into the jury-box. The judge is not to speak, but to read; and when his manuscript is exhausted he is to become silent. It would seem that if counsel can not depend upon the guaranty afforded them by these sections of the Code, they can depend upon no promise made to them in the law. If they can not get a written charge, what can they get? What are they to trust in the whole compass of the statutes, if they are to be disappointed when they cite such peremptory language as
In Jones v. State, 65 Ga. 506, it was said: “In all cases of felony a charge in writing may be required at the instance of either party; and when so written out and read to the jury, it becomes an office paper, is to be filed with the clerk of the court, and shall be accessible to all persons interested in the same.” In Burns v. State, 89 Ga. 527 (15 S. E. 748), it was held: “It is no failure to comply with a request to charge the jury in writing for the judge, instead of copying into his charge sections of the code which he submits to the jury, to read these sections verbatim from the code itself, noting accurately in his written charge the sections so read; but it is error for him to instruct the jury orally as to the form of their verdict, instead of writing out and reading such instructions as a part of the written charge given. The request to charge in writing covers all final instructions to the jury touching their action upon the ease.” In Central Ry. Co. v. Perkerson, 115 Ga. 547 (41 S. E. 1018), the majority of the court held that reading a charge delivered on a former trial of the same case, with certain pencil changes therein, and then having it recopied as thus altered and the copy filed, was a substantial compliance with the statute. Little, J., dissented.
The rulings of this court may appear somewhat strict, but they were based on a statute that was very strict. In view of what is said above, it is unnecessary to discuss statutes of other States or rulings under them. The question propounded by the Court of Appeals is answered in the affirmative.