6 Ga. App. 667 | Ga. Ct. App. | 1909
The defendant was convicted in the city court of Leesburg of the offense of simple larceny; and he excepts to the overruling of his motion for a new trial. In the bill of exceptions he assigns error on exceptions pendente lite to the refusal of his request, made at the close of the evidence, that the judge write out and read the charge of the court to the jury. The judge certifies that the reason the request was not granted was that he did not have time to write out the charge. Since, in our view, a reversal is required on this ground, it is unnecessary to consider any other assignment of error.
In 1860 (Acts 1860, p. 42) an act was passed requiring judges of the superior courts, in felony cases, and in civil cases on final appeal, to write out and read their charges to the jury, when requested so to do by counsel for either party. This act now appears in the Civil Code of 1895, §4318, in the following language: “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 such judge to give any other or additional charge than that so written out and read.” The compilers of the Civil Code of 1895 failed to notice that the act of 1860 had been modified by an act passed in 1878 (Acts 1878-9, p. 150), providing that “requests to the court to charge the jury in writing may be made in any case (italics ours) and at any time before beginning the charge.” If we looked alone to the Civil Code, therefore, we would be forced to hold that the failure to include the act of 1878 therein had repealed it, and that the right to demand written charges is still confined to civil cases and felony cases. But on turning to the Penal Code, we find that the act of 1860 and also the act of 1878 have been condensed into concise language appropriate to a codification of laws, and are preserved in section 1030, in the following language: “The judges of the superior courts shall, when the counsel for either party requests it before beginning the charge, write out their charges and read them to the jury, and it shall be error to give any other or ad
The judge can not deprive the defendant of this right on the ground that he has not time to comply with the request. If necessary he should take a recess until he can write out the charge. Before the amendment of 1897 counsel could wait until evidence and argument had been closed, and then request that the charge be written out and read, but under that amendment the request for a written charge must be made before the argument of counsel begins. The purpose of this was evidently to give the judge time to commit his charge to writing while the case was being argued to the jury. -In speaking of this statute Judge Bleckley 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
We do not think that we should refuse to consider the assignment
Having refused the request, duly and legally made, that he deliver a written charge, the judge erred, and a new trial is mandatory.
Judgment reversed.