36 S.E.2d 191 | Ga. Ct. App. | 1945
Lead Opinion
1. It is reversible error for the court, in a criminal case, to permit counsel in their argument to read to the jury recitals of fact or the reasoning of the Court of Appeals or the Supreme Court as applied thereto.
2. Under the record of this case, it was reversible error to permit the State's counsel, over objection, to read to the jury recitals of fact and reasoning of the appellate courts in decisions rendered. And this right was not waived by the fact that no renewed objection was made at the time of such argument by the State's attorney, and was not waived because an attorney for the accused likewise engaged in such improper and erroneous argument on behalf of the accused.
For a clear understanding of special ground 1 and a better understanding of our reasons for reversing the case on this ground, we quote it and the certificate of the judge pertaining to the overruling *294
thereof as follows: "Movant alleges the court erred, in this, to wit: The accused introduced evidence, and the State of Georgia had the right to make the opening argument and the concluding argument. The Honorable M. H. Boyer, solicitor-general of the Oconee circuit, made the opening argument for the State, and in his argument cited no decisions of the Court of Appeals or of the Supreme Court of Georgia, or any other law or authorities on which the State relied, or which the State intended to cite to the court or argue during the State's argument. Upon the conclusion of the State's opening argument, made by Hon. M. H. Boyer, aforesaid, the opening argument for the accused was made by T. A. Jacobs Jr., and in this argument said counsel for the accused consumed one-half the time allotted for argument, to wit, thirty minutes. Upon the conclusion of the opening argument for the accused so made by T. A. Jacobs Jr., the Hon. Charles H. Garrett, solicitor-general of the Macon circuit, who was to conclude for the State, stated to the court that the State intended to cite and rely upon, and argue, the cases of Gray v.State,
"Movant avers that the court erred in this ruling and erred in allowing the solicitor-general in his concluding argument to read the cited cases, and the verdict and judgment of the court in said cases, and argue as to the similarity of the facts of the case of this accused, to the facts in the decisions cited, in which convictions of assault with intent to rape had been affirmed. Movant says that his objections made to these cases being read and argued in conclusion, when not read and discussed in opening, [were] good, and the court erred in overruling said objections made when the cases were not cited and read in the opening argument of the *296
State, should have been sustained, and it was error to allow the solicitor to read and discuss the facts of the reported cases, so cited, in the concluding argument of the State. Movant alleges that at the time objection was made to the State being allowed to read the cases herein referred to, as cited by the State in its concluding argument, the court was advised that, had the cases been read or referred to in the opening argument of the State, that counsel for the accused, making the opening argument for the accused, to wit, T. A. Jacobs Jr., would have read and cited to the court, in reply to the principle ruled in the cases cited by the State, the rulings made in following cases, to wit: Dorsey
v. State,
"Foreman: Yes, sir.
"The Court: Is there any charge of the law that can help you in the arrival at a conclusion, any charge that the court can give you that will be of assistance to you, then the court wants to do *298 so. The court, of course, can not and would not instruct you as to any question of fact, as that would be highly improper for the court to do.
"Foreman: Some of the jurors asked for that information we had in the note to be read to them or to have the books to read themselves and that is the reason we wrote the note.
"The Court: The argument has been completed. Do any of you gentlemen on the jury have a question of law that you would like for me to give you?
"Juror: During the course of the argument yesterday afternoon there were conflicting decisions read, as to just what the law was as related to what constitutes an intent. Just how far a person has to go before the intent would be presumed; where they held in one case, as I recall, a person was knocked off a foot-log and the assailant fled, and, as I understand it, the higher courts upheld the decision in that case.
"The Court: Do you think it would materially assist you or the jury if the court would give you in charge the law on assault with intent to rape?
"Juror: Yes, sir, I think it would.
"The Court: Is that all the law your question is directed to?
"Answer: Yes, sir.
"The Court: To convict of assault with intent to rape, the jury must find beyond a reasonable doubt that an assault was made, that an assault was made with intent to rape, and that some attempt was made to have carnal knowledge forcibly and against the will of the female. Even though you find an assault was made, but you are not convinced beyond a reasonable doubt that an assault was made with intent to rape, rather than attempt to rob, or an attempt to kill, or merely an assault to frighten the female, you can not convict of assault with intent to rape. If the evidence in the case does not show beyond a reasonable doubt that an attempt was made to rape the alleged female, forcibly and against her will, then you could not convict of assault with intent to rape. An assault with intent to rape is an assault upon a female with intent to have carnal knowledge of her, forcibly and against her will. Before you would be authorized to find the defendant guilty of the offense of assault with intent to rape, the evidence must show beyond a reasonable doubt that an assault was made by this defendant; *299 that at the time the assault was made it was the defendant's intention to have carnal knowledge of the female charged to have been assaulted; and that it was his purpose to carry such intention into effect with force and against her will. If any one of these things is not shown beyond a reasonable doubt, the offense of assault with intent to rape would not be made out.
"The Court: I have undertaken to give you in charge the law on assault with intent to rape. I hope that answers your question. Is there any other question that any of you gentlemen would like to propound to the court? Is there any question on the lesser offense of assault and battery that you gentlemen need, any further instructions? If so, you may so indicate.
"The Court: You may retire.
"Movant assigns error on the charge as above given, because assault with intent to rape is not shown unless there is some overt act, that is, some attempt to have carnal knowledge forcibly and against the will of the female. The mere intent to rape without some overt act, that is, some attempt to carry into execution such intent, does not make the offense of assault with intent to rape. Movant says that for all the grounds and reasons urged and set out herein, the court erred in making the ruling and judgment complained of, allowing the State to cite and read the facts of reported cases, which were not read or cited in opening.
"Movant says it was error to allow the solicitor-general to read the facts of the reported cases, herein mentioned, and argue to the jury that convictions of assault with intent to rape were affirmed in those cases, and urge upon the jury the similarity of the facts in the reported cases to the facts of the case of this accused.
"The vice and error in such practice is reflected in the request by the jury of a re-charge, and the request that the conflicting decisions on similar facts be reread, or the jury allowed to read the decisions themselves. It will be seen that this jury undertook to recall the facts in a decision read, and measure this case, by a decision of the Court of Appeals on the facts of that case, as the jury recalled the case.
"Movant says it is error to allow the facts of a reported case and the judgment of the court in that case made known to the jury, and in this way argue to the jury that the facts of the case being tried make it a parallel case to the one affirmed by the Court of Appeals. *300
"Movant says, when the request was made that the cases be read so the jury might harmonize and reconcile the apparent conflicting decisions, the court erred in not allowing counsel for the accused to read to the jury such cases as counsel advised the court would have been read and cited, had the State given notice it intended to read any decisions, or the facts of reported cases, in the State's opening argument.
"Movant further says the court erred in stating the law applicable to assault with intent to rape in the recharge, by failing to instruct the jury there must be some effort or attempt to carry into effect the intent to have carnal knowledge forcibly and against the will of the female."
The trial judge's note reads as follows: "I do certify that the foregoing grounds of the amendment are true and correct, and the amended motion for new trial is allowed, and the grounds thereof approved as true and correct. As to ground 1 of the amended motion for new trial, I certify, in addition to the facts stated in the motion, the following facts: After the ruling complained of in ground 1 of the amendment, a second argument was made for the defendant by Mr. D.C. Chalker, of the Hawkinsville bar; thereafter, the third member of defendant's counsel, Mr. W. A. Wooten, of the Eastman bar, devoted ten minutes to a discussion of the authority of Gray v. State,
The Code, § 24-2628, provides: "The several judges of the superior courts may convene at the seat of government once in each year, at such time as they, or a majority of them, may appoint, for the purpose of establishing uniform rules of practice throughout *301
the several circuits; which rules, so established, shall be published immediately after the adjournment of said convention. (Act 1821, Cobb, 460.)" And § 24-2629, in conjunction therewith, provides: "All rules of practice for the superior courts, prescribed by any other authority than that which has, by the preceding section, been deputed to all the judges of the superior courts in convention, shall be null and void and inoperative. (Act 1847, Cobb, 461.)" Rule 2 of the superior courts (Code, § 24-3302) reads: "Arguments of counsel shall be confined to the law and the facts involved in the case then before the court, on pain of being considered in contempt; and in all civil cases questions of law shall be argued exclusively to the court, and questions of fact to the jury. Counsel shall not be permitted, in the argument of criminal cases, to read to the jury recitals of fact or the reasoning of the court as applied thereto, in decisions by the Supreme Court or Court of Appeals." The last sentence in the above-quoted Code section was added by amendment of the judges in assembly on July 2, 1924. The convention of judges had power to amend this rule. See Snipes v. Parker,
In Wilson v. State,
By an act of the legislature approved December 24, 1821 (Cobb's Digest 460), the judges of the superior courts of this State were authorized to pass rules of practice and procedure with the binding effect of statutes. The unhampered exercise of this authority was not disturbed until after a convention of the judges in Atlanta, Georgia, on December 4, 1936. At this convention, a new set of *302 rules was adopted to become effective January 1, 1937. These new rules not only included therein the rules in effect at the time of this convention, but adopted several new rules. Most, if not all, of these new rules were considered so objectionable to the members of the General Assembly that when they met at the next session thereafter they repealed the authority of the superior court judges to adopt rules in convention as provided in the Code, § 24-106, and enacted a provision in lieu thereof that no rule passed by the judges in convention should become effective unless approved by a legislative act. Ga. L. 1937, p. 464. In other words, the judges might meet as theretofore authorized and make such recommendations to the legislature as to rules of practice and procedure, but such rules would not become effective unless approved by the General Assembly. The same act repealed the objectionable rules passed by the assembly of judges in 1936, as will be seen by reference to the act, but left of force the rule now under consideration as it is now contained in the supplement to the annotated Code, § 24-3319 (the old rule being contained in Code, § 24-3302). It will thus be seen that the effect of the act of 1937, supra, was to leave of force the rules then in effect which the legislature did not specifically repeal. The effect of the act on the rules was prospective and not retrospective. It thus seems clear that, in a criminal case, "counsel shall not be permitted, in the argument . . to read to the jury recitals of fact or the reasoning of the court as applied thereto, in decisions by the Supreme Court or the Court of Appeals." From the recitals of fact in the special ground now under consideration, it can not be doubted that this rule was violated and was prejudicial and harmful to the accused. This is made manifest by the request of the jury, after several hours deliberation, to have reiterated to them the conflicting facts in other cases so that they might apply the reasoning of the appellate courts under the facts of the other cases to arrive at the guilt or innocence of the defendant under the facts of the case on trial, or to be permitted to have the volumes of the reports which contained such facts in such other cases so that they might themselves read them in order to get a clear understanding of their duty under the facts of the case then on trial.
2. The only remaining question to be considered is: Was the objection by counsel for the accused timely made, and were the *303
rights of the accused as to the benefits and provisions of this rule waived by the failure to make proper objection to the argument of State's counsel? Properly construed, the special ground now under consideration, together with the judge's note thereon, contains two specific objections: first, that the authorities upon which the State relied were not submitted before the argument for the defendant began; and second, the court permitted the recital of facts and the reasoning of the appellate courts in decisions to be read to the jury. With regard to the first of these, we are sure that the court did not commit substantial and prejudicial error. As to this feature, the judge permitted counsel for the defendant additional time in which to reply to the argument of the State as to the cases cited by the State. In Fort v. State,
Let us now discuss the second objection. When the State's counsel who was to make the concluding argument submitted the authorities which he would discuss in conclusion, counsel for the defendant objected to the court's permitting counsel in conclusion to read the facts in those cases to the jury or in the presence and hearing of the jury; and a number of cases were then called to the attention of the court, containing recitals of fact beneficial to the defendant in comparison with the facts of the case then on trial. In reply to this objection, the judge ruled that he would permit counsel for the defendant such additional time as was necessary to reply to the argument of the State relative to the cited cases. Nevertheless, the court did permit State's counsel to read the facts of those cases to or in the hearing of the jury and to argue their similarity to the facts of the case on trial; and nevertheless, as the court recites in the note overruling this ground, counsel for *304
the accused spent several minutes presumably discussing the facts in a case cited by counsel for the State as well as one of the cases called to the attention of the court under the objection when made. This opening of the gates of erroneous argument to both sides did not prevent a violation of the rule under question or cure the erroneous ruling. On this principle there are numerous cases which by analogy prove the correctness of our view. Our appellate courts in some of those cases have used very strong language of disapproval. In the celebrated case ofWoolfolk v. State,
The court erred in overruling the motion for a new trial, for the reasons set out in special ground 1.
Judgment reversed. Broyles, C. J., concurs.
Concurrence Opinion
A rule of the superior court, as embodied in section 6261 of the Code of 1910, is as follows: "Arguments of counsel shall be confined to the law and the facts involved in the case then before the court, on pain of being considered in contempt; and in all civil cases questions of law shall be argued exclusively to the court, and questions of fact to the jury." (Italics mine.) Rome Railroad Co. v.Barnett, *306
Section 626 of the Code of 1910 made no specific reference to criminal cases. I think that, if the amendment in question had meant to make the rule in criminal cases the same as in civil cases, it would have merely added the words, "and in all criminal cases," after the words, "in all civil cases." The amendment does not conflict with or change the rule embodied in the former section, nor was it intended to change the rule which the Supreme Court had always applied in criminal cases, but the amendment was made in a concise form so that the rule in criminal cases would accompany the rule in civil cases and be embodied in the same section of the rules of the superior courts, established by the judges in convention, and could be easily codified in the same section.
A clear statement and an explanation of the rule, as it related to the argument of law and facts in criminal cases, was made by Judge Lamar, speaking for the court in Cribb v.State,
