Lead Opinion
The rulings stated in the first three headnotes do not'require elaboration. The question of law dealt with in the last headnote, being novel, important, and interesting, justifies, if it does not demand, elaboration. The accused were on trial for murder. The jury, after having been out for some time considering their verdict, came into court and announced that they had agreed upon a verdict. This verdict was read by the solicitor-general, and was as follows: “We, the jury, find the defendants, B. L. Register and C. C. Register, guilty of involuntary manslaughter. E. L. Bacon, foreman. This April 13th, 1911.” The judge refused to receive this verdict, or allow it to be filed, and directed the jury to return to their room for further deliberation, stating to them that the court could not receive the verdict which they had attempted to return, and that the court had not charged them upon the law of involuntary manslaughter. Counsel for the defendant, immediately after the jury had returned to their room, asked that the judge charge the jury as to the grades of involuntary manslaughter, and reduced the request to writing; and the court refused to give the instructions requested, or to charge the jury upon the law of involuntary manslaughter. The judge had the jury brought back into the court-room, and the following colloquy took place between the court and one of the jurors: The court: “I just called you out, gentlemen, to see what the trouble was, if any, — if there was any way in which the court could help you as a matter of law. Of course the facts, the court could not intimate any opinion as to these.” Juror: “We want to know as to the degrees in this manslaughter.” The court: “I don’t quite understand the inquiry, gentlemen.” Juror: “We want to know whether or not there was more than one kind.” The court: “I gave in charge instructions as to voluntary manslaughter. What is your inquiry now, Mr. Foreman?” Juror: “We wanted to know if there was more than one kind, that is, involuntary manslaughter.” The court: “The court gave you instructions with reference to voluntary manslaughter. The court did not give you any instructions with reference to involuntary manslaughter.” Juror: “That is all.” After this the jury retired, and brought in a verdict of guilty of voluntary manslaughter. The
The form in which this question is raised is probably not technically correct. It should have been made by direct exception at the time of the action of the court in refusing to receive the verdict of involuntary manslaughter and directing the jury to return to their room for further consideration, or by an exception contained in the final bill of exceptions. But regardless of the manner in which the question is raised, this court thinks that the question as presented in the motion for a new trial is of such character as to demand a decision, as, in our opinion, the question lies rat the very foundation of-the right of jury trial.
It is interesting to note that the question here made has never before, except on one recent occasion, occurred in the history of criminal trials in this State. The previous occasion referred to was in the case of Darsey v. State, 136 Ga. 501 (71 S. E. 661), in which the judgment of the trial court was affirmed by operation of law, the Justices of the Supreme Court being evenly divided in opinion. In that case the question, although identical as to principle, was presented somewhat differently to the Supreme Court from the manner in which the question is presented to this court in the present case. The Darsey case was an indictment for murder. The trial judge instructed the jury on the law of murder and the law of voluntary manslaughter and the law of justifiable homicide, and as to'the
It was insisted, in the argument of learned counsel for the defendant in error, and also in the brief filed in this court, that the judgment in the Darsey case is binding on this court on the question now raised. We do not concur in this view.. By the constitutional amendment creating this court, “the decisions of the Supreme Court shall bind the Court of Appeals as precedents.” But in the Darsey case the court did not make any decision. The Justices of the
The fundamental law of this State declares that “the jury in all criminal cases shall be the judges of the law and the facts.” Constitution, art. 1, sec. 2, par. 1 (Civil Code (1910), § 6382). And this has always been the law in this State. In the earlier decisions the Supreme Court held that this provision of law meant that the jury were judges of the law even to the extent that they could determine the law to be different from that given in the judge’s charge. In the case of Ricks v. State, 16 Ga. 600, after quoting from the Penal Code as follows: “On every trial of a crime or offense contained in this Code, or for any crime or offense, the jury shall be judges of the law and the fact, and shall in every case give a verdict of ‘ guilty ’ or ‘ not guilty ’; and on the acquittal of any defendant or prisoner no new trial shall, on any account, be granted by the court,” the court says: “The meaning of this plainly is, that it is the jury and not the court — the jury whose right and whose duty it shall be, to be the judges of both what the law is and what the fact is; that is to say, whose right and whose duty it shall be to judge — to decide both what the law is and what the fact is; and that after having judged, decided what the law is, and the fact is, they shall give their judgment — their decision in the form of
But suppose the jury disregards its duty in a criminal case and returns a verdict outside of the law as expounded by the judge, and without any evidence to support it as given by the witnesses, what would be the effect of such a verdict ? The accused has a statutory remedy. He can file a motion for a new trial and have the verdict set aside, because contrary to law, or without any evidence to support it. But what can the State do? It certainly can not have such a verdict set aside on motion for a new trial, for in no case can the State file such a motion, and no new trial shall on any account be granted by the court at the instance of the State. What the State can not do directly, the trial judge can not do for the State indirectly. If a verdict of acquittal is a complete bar tó any further prosecution, the court has no authority to continue any further prosecution of the case after the verdict of acquittal by the jury. It is wholly immaterial whether the verdict is supported by the evidence or by the law. If a verdict found by the jury is included within the crime as charged by the indictment, and is in form correct and explicit, the court is powerless to change it. The court is powerless to direct the jury to change it after it has been published. It stands forever as a protection to the accused and as a complete bar to any further prosecution for the same transaction. In the case’ of Kitchens v. State, 41 Ga. 217, Judge McCay
In this case the verdict of involuntary manslaughter which was found by the jury in the first instance was an acquittal of the defendants of all the higher grades of the homicide, and must be treated as equivalent to a finding that the defendants were guilty of involuntary manslaughter in the commission of an unlawful act. Thomas v. State, 121 Ga. 331 (49 S. E. 273). “When only a minor offense is found, the finding, unless set aside at the prisoner’s instance, is a full and complete acquittal of the major offense charged.” Miller v. State, 58 Ga. 203. Of course, where a verdict is not in proper form, or where it is uncertain what the jury intended to find by their verdict, or where that verdict is for an offense not covered by the indictment, the judge may send the jury back for further 'consideration of the case. Cook v. State, 26 Ga. 593; Mangham v. State, 87 Ga. 552 (13 S. E. 558). But if the verdict is explicit and is included in the charge set out in the indictment, and if it appears to be the deliberate and intentional finding of the jury, though it may be in the very teeth of the charge and wholly without any evidence to support it, the court is obliged to receive it; and to refuse to do so is, in the opinion of 'a majority of the court, under the law of this State, an unwarranted invasion by the judge of the exclusive province of the jury. Mr. Bishop, in his work on Criminal Procedure (2 New Or. Proc. § 642), uses the following language: “A verdict contrary to instructions, for a less degree of the offense than the evidence proves, must be received
In a criminal case, therefore, we conclude that while it is the duty of the jury to take the law as given them in charge by the -court, and the evidence as presented to them by the witnesses, yet if they take the law and the evidence into their own hands and- find a verdict explicit as to form and intention, and included within the crime charged in the indictment, the finding is within their power as it is written in the law, and the verdict is an absolute imotection from any subsequent prosecution for the same transaction, whether or not that verdict is received formally and filed by the court; and the
In Fagg v. State, 50 Ark. 506 (8 S. W. 829), the accused was tried on an indictment for murder, and the jury found the following verdict: “We, the jury, find the defendant guilty of manslaughter, but can not agree upon his punishment.” In Arkansas the statute, as in this State, makes two degrees of manslaughter, voluntary manslaughter and involuntary manslaughter. The judge, in sentencing the defendant, treated this verdict as one of voluntary manslaughter. The appellant contended that the killing was either .murder in the first degree, or justifiable homicide, and therefore that the jury could not legally return a verdict of manslaughter.
To refuse to receive the verdict in a criminal case, on the ground that the verdict is for a grade of the offense charged in the indictment but not covered by the instructions of the court, and without evidence to support it, is to restrict the exclusive right of the jury in their finding of a. verdict to that view of the law and the evidence entertained b}r the trial judge, and in its last analysis is destructive of the right of jury trial. And certainly, in a State where the statute deprives the judge of the right to intimate any opinion on the facts, and makes such intimation of opinion a mandatory ground for a new trial, the refusal of the trial judge to receive a verdict is, although indirect, a very strong method of informing the jury that the trial judge entertains a different opinion from that entertained byr the jury on the evidence as applicable to the law. In the case of Grant v. State, 33 Fla. 291 (14 South. 757, 23 L. R. A. 723), the indictment was for murder, and the jury brought in a verdict of manslaughter in. the first degree. The judge refused to receive this verdict and stated to the jury in effect that it was defective, as there were no degrees in manslaughter, and
In the case of Spence v. State, 7 Ga. App. 825 (68 S. E. 443), this court held that on the trial of an indictment for murder the jury may convict of any lesser grade of homicide, and a verdict of voluntary manslaughter in accordance with the evidence would be a legal verdict, although the court did not instruct the jury on the law of voluntary manslaughter. A majority of the court in the case sub judiee go even further than the decision announced in the Spence case, and entertain the view that a verdict for a lower grade of homicide on the trial of an indictment for murder is binding upon both the trial judge and the State, and can not be set aside or avoided except at the instance of the accused. As before •stated, a verdict of guilty of a lesser grade of homicide than that charged in the indictment is an acquittal of the higher grade. To allow the judge to refuse to receive it is to allow him to refuse to permit the jury to acquit of the higher grade of homicide because the verdict is not sustained by the evidence as the judge views it. The fact that the State can not except to a wrong verdict and the defendant can do so is immaterial and furnishes no answer to the
We have not referred to the colloquy between the judge and the jury subsequently to the return of the verdict of involuntary manslaughter, and the absolute refusal of the judge to receive the verdict, and his direction to the jury to retire and resume their deliberations. If we are right in the view presented, that the verdict of involuntary manslaughter was, under the circumstances stated, a .final verdict, and it was-the duty of the court to receive it, the subsequent action of the court was wholly immaterial. We think, however, that a fair deduction from the language used by the jury in reply to the judge’s inquiry was an expression of a desire to adhere to the verdict of involuntary manslaughter, if there was such a grade of homicide, and they were prevented from doing so because the judge declined to answer their inquiry, except by telling them that the court had “given instructions only as to voluntary manslaughter.” This was equivalent to telling the jury that so far as the evidence in this case disclosed, there was no such offense as involuntary manslaughter. It will be noted that the judge’s refusal to receive the verdict of involuntary manslaughter was not on the ground that the verdict was imperfect or incomplete in that it did not clearly express the intention of the jury on the grades of
Suppose the jury in this case, after the refusal of the judge to receive their verdict, had persisted, and again returned the same verdict, could the judge have legally declared a mistrial? AYould not the accused have been protected from any subsequent trial bjr the plea of autrefois convict, if the judge had declared a mistrial? Suppose the judge had said to the jury, when they brought in their verdict of involuntary manslaughter: “ Gentlemen of the jury, you have -found a wrong verdict, one wholly without evidence to sup}Dort it and in the teeth of my instructions on the law, and I therefore set it aside, and direct that you retire to your room and resume your deliberations,” would this not have been a clear invasion of the exclusive province of the jury? Is there any substantial difference in this supposed action of the judge, and what was done in this case? Judgment reversed.
Dissenting Opinion
dissenting from the ruling in the 4th paragraph of the syllabus and the corresponding matter in the opinion.
There may have been a day when the proposition laid down in the.
A court is defined as “a place where justice is judicially administered.” The chief task of all our ingenuity is and should be to make our courts efficient to this end of administering justice. Harmony is a sine qua non of efficiency. Courts give better justice now, and administer it more judicially, than they did in earlier times, because more certain and harmonious methods of trial than were then known have been devised. In no phase of the general question 'has more improvement in this respect been obtained than has come about through the progress which has been made in defining the respective functions of judge and jury as they are called upon to co-operate in the trial of a case.
Irrespective of all older views and judicial announcements on the subject, the modern view and the present rule are conceded to be that the judge is charged with the function of deciding all questions of law in the ease, and the jury with the function of deciding all questions of fact; and beyond this, wherever a general verdict is required, as it is in a criminal case, the jury is charged with the further duty of applying the law as decided by the court to the facts as found by the jury. Further progress has been made in this State by'the working out of,the proposition that the determination of what issues are involved in a case is a question of law, for the court to decide. For instance, though the question as to whether the defendant is guiltjr of manslaughter may be a possible issue under an indictment for murder, it is error for the court to submit that issue to the jury, where there is no evidence of that character of homicide which constitutes manslaughter; and it is proper in such a case for the court to tell the jury that they should not consider that subject. This proposition has been established by repeated decisions, the majority opinion concedes it, and I need not elaborate it. i
Not only is it-the duty of the judge to decide the law, but it'is his duty to tell the jury how he has decided it, and it is his duty to see that his decision is obeyed and respected, so far as may be in his power. For instance, suppose a writing were offered in evidence
There are a number of decisions of our Supreme Court (and they are referred to with approval in the majority opinion, though as to them my colleagues find a distinction which my mind does not make) to the effect that if the jury offers a verdict for some offense not included in the indictment, the court should decline to receive it. By what right does the court decline to receive such a verdict ? It is for no other reason than that such a verdict is not responsive to any issue in the case; and it is the right and duty of the court to see that the verdict is responsive to the issue, or to one of the issues submitted. If the jury (though in a certain sense judges of the law and of the facts) differ with the judge and believe that they have the right to return a verdict for some misdemeanor, say assault and battery, upon an indictment charging a felony, say arson, it is the jury, and not the judge, that must yield. If the judge should receive such a verdict, it would operate to acquit the defendant of the arson, and it would in all respects be equivalent to a verdict of not guilty of that offense; and yet, because the jury thus offer to express themselves in a formulated finding, as if it were a true verdict, should the court receive it? No. And this is an answer in which both reason and precedent heartily concur. And from the correctness of this answer my colleagues offer no dissent.
Now, take a step further, keeping in mind as we go that the determination of what the issues in a case are depends upon a consideration of both the pleadings and the evidence. An indictment charges murder. There is evidence of a homicide, but nothing whatever to show (what it is necessary to show, in order to convict of involuntary manslaughter) that the killing- was negligent but unintentional; indeed, the defendant concedes an intent to kill, but pleads justification. The judge, charged with the duty of framing the issues on which the jury must pass, decides, and correctly decides, that there is no issue as to involuntary manslaughter in the
I fully agree to the proposition that the judge must not transgress upon the prerogative of the jury. I, with equal alacrity, agree that trial by jury is a well-established right, high and valuable in its nature. But my point is that trial by judge (meaning thereby that the judge shall perform those functions in the trial of the case which are his to perform, according to the recognized division of duties) is to my-mind a right no less firmly established, a right no less important in its nature, than trial by jury. Trial by court, that is by both judge and jury, with each legitimately performing only the particular function given by law, is the kind of a trial that most commends itself to right thinking and to the highest sense of jus
It is no less a wrong for the jury to invade the province of the judge-than it is for the judge to invade the province of the jury. If a judge, forgetting his duty, should undertake to invade the province of the jury and to express his opinion on the facts, the jury should disregard it and should refuse to follow his opinion, unless it accords with their own. On the other hand, if the jury undertakes to invade the province of the judge, and to inject into a case an issue which the judge has decided is not in it, the judge should likewise repel the invasion of his province, and, in the discharge of his function as the head of the court, directing the progress of the trial, should compel the jury to keep its placo, and either to render a verdict on some issue submitted or else make a mistrial.
It is said that if this proposition were recognized to its logical end, a judge might direct a verdict in a criminal case, where the facts were undisputed. Perhaps this may be a logical extension of the doctrine (though I do not concede, that it is); but even if it were, still, it is to be remembered that we carry few, if any, of our legal doctrines to their full logical end in actual practice. This is true with courts just as it is with men in other activities. From the standpoint of strict logic, we might say that no sensible man would ever eat food that he knows is likely to disagree with him; and yet, in actual practice, sensible men do that very thing every day. But, be that as it may, every criminal case contains the issue of guilty or not guilty of the offense charged, and the jury must believe the evidence, howsoever strong and ■ uncontradicted, before they are compelled to render a verdict of guilty. The jury may reject evidence, but they can not supply it where it does not exist. And it must be kept in mind that the verdict which the judge refused to receive in the present case is one which could not be rendered upon a rejection of testimony; it depended upon the jury’s supplying certain facts of which there was no evidence.
Let us elaborate this last proposition slightly. The indictment charged murder — a homicide committed by shooting with a pistol. .No matter how conclusive of that offense the testimony as delivered might have been, the jury might have disbelieved it, and could have rendered a verdict of not guilty without going beyond their legiti
In this connection it is well enough to draw attention to a difference between the modern and the earlier functions of juries. The day was when the jury had the right to act on the private knowledge of its members. Prom our studies in the history of the English law we learn that in the earliest times juries acted solely on what they knew of the case or of the parties; later they might hear witnesses, but could still legally use their personal knowledge; but now our Civil Code (1910), § 5932, provides, “A juror should not act on his private knowledge resjoecting the facts.”
In the days when jurors could legally act on their private knowledge of the facts, it would have been improper for a judge to refuse to receive from the jury a verdict of any offense which by legal possibility could be included within the charge stated in the indictment. When that was the rule, every grade and degree of murder and manslaughter, as well as a number of minor offenses, was necessarily in issue when the accused pleaded not guilty to an indictment charging murder; for even though no issue of fact as to some of these offenses should arise under the testimony, the court could not say that such an issue had not arisen by reason of some matter resting within the private knowledge of the jurors. 'This is no doubt the rationale underlying many of the old precedents wherein the right of a judge to refuse a verdict not responsive to the issues made by the evidence is denied. Certainly this is the avowed
If the jurors, acting within their appropriate sphere, find an untrue verdict upon some issue submitted to them, that is a matter which the judge can not avoid, so far as the trial itself is concerned. (It is to be seen that I am now drawing the distinction between the powers of the judge at the trial, and the powers of the judge on motion for a new trial; for the two functions are different and need not be exercised by the same person.) -Whether a verdict is true or not is an issue of fact which the judge (on the trial) has no power to decide; he therefore can not refuse to-receive a verdict because it is not true. Whether a verdict is responsive to the issue submitted to the jury is a question of law; and hence, to that extent, the judge may control the verdict as to this, just as he may control it as to matters of form, as to the method in which it shall be received (that is to say whether in open court or at recess), and as to how it shall be published (that is to say, whether by the oral announcement of the foreman, or in writing signed by the foreman, or on a poll of the entire jury).
After a verdict has been received, the power and the function of the judge are very different, both as to extent and as to limitations, from what they were on the trial. (I mention this because in the majority opinion reference has been' had to the decisions which declare that the court can not set aside a verdict in a criminal case except on motion of the accused.) If, after the trial, t-hé court is called upon to deal with or set aside a verdict, the judge alone constitutes the court. He considers- and, within certain limi
More could be said, but enough has probably been said to effect the sole purpose I have in mind, and that is to protest against our looking to the past, instead of to the present and to the future, in determining what is lawful and right on this proposition which divides us. I realize that my colleagues have taken the side of this