24 Ga. App. 35 | Ga. Ct. App. | 1919
Lead Opinion
Under these circumstances the provisions of the so-called “dumb act” (Penal Code, § 1058; Civil Code, § 4863) were not violated by the judge in assuming that the property had been stolen by someone before it came into the defendant’s possession. Marshall v. Morris, 16 Ga. 368; Springfield v. State, 125 Ga. 281 (54 S. E. 172); Robinson v. State, 129 Ga. 336 (58 S. E. 842); Georgia, Florida & Alabama Ry. Co. v. Jernigan, 128 Ga. 501 (57 S. E. 791); Jones v. State, 130 Ga. 274 (60 S. E. 840); Taylor v. State, 135 Ga. 622 (8) (70 S. E. 337); Callahan v. State, 14 Ga. App. 442 (2) (81 S. E. 380); Wilson v. State, 15 Ga. App. 632 (5) (84 S. E. 81); Sistrunk v. State, 18 Ga. App. 42 (5) (88 S. E. 796); Gallaher v. State, 22 Ga. App. 640 (97 S. E. 97).
Judgment affirmed.
Dissenting Opinion
dissenting. The defendant was tried for the larceny of a cow. The State relied for a conviction upon the recent possession by the defendant, unsatisfactorily explained, of the cow alleged and claimed to have been stolen. Among other things, the defendant, in his motion-for a new trial, excepted to an alleged expression of opinion upon the facts by the trial judge, which the defendant contends necessitates the granting of a new trial. The excerpt complained of is as follows: “All of those questions are for you to determine, but if the explanation made is consistent with the hypothesis of innocence, or with innocence, if you believe it to be true, why you wouldn’t be authorized to find a verdict of guilty on the fact that he was found in the recent possession of the property shown to have been stolen.” It is contended that this charge was error in' that the judge stated as a fact that the property was shown to have been stolen, and also stated as a fact that the
While it is true, as Judge' Bleckley says in Yarborough v. State, 86 Ga. 396 (2) (12 S. E. 650), that “To declare the law applicable to a given state of facts is no expression pr intimation of opinion as to whether any of the facts referred to do or do not exist in the case on trial,” yet “when the charge of the court assumes certain things as facts, and is in such shape as to intimate to the jurJ what the judge believes the evidence to be, and that they made defendant guilty, a new trial will-be granted.” Whitley v. State, 38 Ga. 50 (4). To ascertain the true meaning of this excerpt, and to determine whether or not the expression referred to amounts to an expression of opinion, it is necessary to consider it in connection with the entire charge, and particularly with reference to all of that part of the charge dealing with presumption of guilt arising from recent unsatisfactorily explained possession of the property alleged to have been stolen. That the entire charge may be considered in properly arriving at the construction of the excerpt complained of is a sound principle of hermeneutics. See, in this connection, Hanvey v. State, 68 Ga. 615; Moon v. State, 68 Ga. 697. The only conclusion that can be drawn from a consideration of the entire charge is that the trial judge expressed and intimated, in the excerpt complained of, an opinion on the facts as claimed by the defendant. The other portions of the charge shedding light upon this question are as follows: “Now the defendant in this case, gentlemen, sets up in his defense that the particular cow alleged in this indictment was purchased by him from one John Johnson, and that his connection with that cow came about in that way,—in other words, the question of the recent possession of property shown to have been stolen, the defendant accounts for this possession by showing or undertaking to show that his possession and connection with it came about by buying it from another party. Now I charge you the law concerning the recent possession: where a larceny is shown to have been committed, that is to say, where the principal fact that a larceny has been committed, and a person is found to have been in the recent possession of the goods that were stolen, why that possession creates a presumption of fact which would authorize the jury to convict, if the possession is not satisfactorily explained to the jury. , . Where
Nowhere did the judge submit to the jury the issue whether or not the eow had been stolen. This was a most essential fact in the case. It was the corpus delicti. While the failure of the judge to so charge is not complained of, it is to be considered in determining what impression the charge must have made upon the jury, and as demonstrating the fact that the whole tenor of the charge assumed that the cow in question had, as a matter of fact, been stolen, and the jury could but infer that the judge was of the opinion that the cow in question had, as a matter of fact, been stolen. As evidence that the charge eliminated from the jury a consideration of any issue as to whether or not the cow in question had been stolen, and narrowed the consideration of the case to the question of recent possession, attention is called to the final expression in the charge, before the jury retired, in which the judge stated: “If, under the evidence and the law as given you in charge, you find that the defendant has satisfactorily explained his connection with it [with what? Necessarily the stolen cow], you would not be authorized to find the defendant guilty.” [Italics mine.]
As to what constitutes an expression of opinion on the facts, see the following from the opinion of Judge Bleckley, in Kinnebrew v. State, 80 Ga. 232, 239 (5 S. E. 59): “No doubt there is danger of intimating an opinion, or leading the jury to think that an opinion is intimated, though the purpose be only to discriminate between legal and logical sufficiency; and this danger is not lessened, but rather increased, by the fact that in most instances the one kind of sufficiency exists wherever the other does. But danger is no interdict on duty, and a charge is not erroneous for pointing out that the jury are authorized to infer one thus-and-so from another thus-and-so, provided they believe from the evidence that the first thus-and-so is established,
While .the defendant’s main line of defense was that he bought the cow in question from someone other than the alleged owner, and in his statement to the jury he confined himself largely to this issue, and did not expressly deny that the cow had been stolen as alleged, it is contended here that his failure thus to deny the allegation of the theft of the cow amounted to an admission on his part of the alleged larceny as a matter of fact, and that, if the trial judge intimated or expressed an opinion as to the truth of such allegation, it was harmless and the defendant cannot now complain. This contention, is untenable. When the trial judge in his charge to the jurjr expresses an opinion on what has or has not been proved, it is mandatory on this court to set the verdict aside, regardless of any view which we may entertain as to the harmless effect of the charge. Penal Code, §1098, and Phillips v. Williams, 39 Ga. 597. While it has been held that the inhibition upon the trial judge expressing or intimating an opinion upon the facts applies only to incidents where the alleged fact is in dispute and about which the parties are at issue, it has been held that in a criminal case, even though the testimony offered in behalf of conviction is undisputed and uncontradicted by other testimony, every allegation in the indictment and the evidence offered in support of it are put in issue by the defendant’s plea of not guilty. In determining whether the parties are at issue upon any alleged fact the rule in criminal cases is different from that in civil cases, due to the differences in pleading and other fundamental differences between the two classes of cases. In a criminal ease the defendant’s plea of not guilty denies every allegation in the indictment against him, as well as the case made under the evidence, though uncontradicted by other testimony. The defendant is presiuned to be innocent, and this presumption remains with him throughout the trial. His plea of not guilty and this presumption of innocence, therefore, continue throughout the entire trial to challenge and
In the case of Young v. State, 125 Ga. 584 (54 S. E. 82), the accused made a statement in which he in so many words admitted that there had been a homicide, making no reference, however, either by way of admission or denial, to the manner in which such homicide was committed, but resting his defense solely upon an alibi. The Supreme Court in that case held that “The indictment having alleged that the deceased was murdered by .the use of a gun, these were matefial and essential averments, and the defendant’s plea of not guilty put both of them in issue. There was nothing in the evidence or the prisoner’s statement, nor was there any admission by his counsel, which authorized a charge to the effect that the defendant’s contention was that while there was a homicide, and while the deceased was killed with a gun and under
While there was a dissent in the Young case just referred to, the dissenting opinion called attention to the defendant’s statement, wherein he said that ''that man [meaning deceased] was killed. They killed him;” and in the opinion it was said that “the evidence, while circumstantial, pointed to the accused as the perpetrator with a certainty which authorized the verdict of the jury,” and that “this is the third conviction of the defendant for the same offense.”
In Ryder v. State, 100 Ga. 528 (9) (28 S. E. 246, 38 L. R. A. 721, 62 Am. St. R. 334), the Supreme Court held: “The court in some of its instructions referred to the homicide as 'the act which the accused had committed’ and thus at least intimated an opinion that the killing was done by him; and although many of the requests to charge practically conceded that this was true, yet as it was not distinctly admitted that the accused did commit the homicide, expressions embracing such language as that above quoted should not have been used.” While the charge there was held to be error, the court held that it was not sufficient to authorize the granting of a new trial, since counsel for the accused had, in a written request to charge, which was refused, sought to induce
There was nothing in the defendant’s statement in the case at bar that can be construed into an admission that the cow had been stolen. He did state something to the effect that he had some suspicion about the title to the cow when he bought it, but this can hardly be considered as admitting a larceny. Neither did-the defendant’s evidence prove larceny. The instant ease therefore does not fall within the ruling of the majority of the court in Jones v. State, supra.
Since there was an issue made by the pleadings, -which was not removed by an admission upon the part of the defendant or his counsel, or defendant’s evidence, upon the question whether or not the cow found in defendant’s possession had' been stolen, it was error for the trial judge to express or intimate an opinion upon this issue.
The defendant’s conviction depended entirely upon circumstantial evidence. It necessarily depended upon the inference that he was the alleged thief, drawn from the circumstance, if true, that he was in the recent possession of a stolen cow, which possession was unsatisfactorily explained by him. It was therefore error on the part of the trial -judge to fail, even in the absence of a request,
Without passing upon the other questions raised, I am of the opinion that, for the foregoing reasons, the judgment should be reversed and a new trial granted.
