Lead Opinion
Williams was granted a new trial after a jury verdict on the basis of the finding by the original trial judge that "the verdict is decidedly and strongly against the weight of the evidence.” Code Ann. § 70-206. He was later convicted, and brought this habeas cоrpus action, which resulted in an order for his release. The habeas court ruled that the new trial order was "a finding that the evidence did not authorize the verdict” and that a retrial was barred under Code Ann. § 26-507 (d) (2). The state appeals, contending that the statutory double jeopardy bar does not apply to this case.
Marchman v. State,
We hold however that a grant of a new trial by the trial judge under Code Ann. § 70-202 ("contrary to evidence and the principles of justice and equity”) or Code Ann. § 70-206 ("decidedly and strongly against the weight of evidence”) does not result in a statutory double jeopardy bar under Code Ann. § 26-507 (d) (2). It has been repeatedly held that these general grounds for a new trial
"The trial judge unqualifiedly overruled the general grounds of the motion for a nеw trial, and in doing so exercised the discretion vested in him by law. Where, as in the present case, the trial judge has exercised the discretion vested in him by law, and there is some evidence to support the verdict, the judgment overruling the general grounds of the motion for new trial is not error. Andrews v. Dilano,
"Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against is [sic] weight, is a question the law vests in the trial judgе’s discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.” Adler v. Adler,
The trial court erred in granting the writ of habeas corpus.
Judgment reversed.
Notes
Three members of the court dissented (Ingram, Hall and Hill, JJ.) to the statutory construction of Code § 26-507 given by the majority. The General Assembly hаd the opportunity to overrule the majority opinion at its 1976 and 1977 sessions. While such a bill was introduced, it was not enacted into law. Under the normal rules of stare decisis regarding consistency and uniformity of decision, wе will not re-examine the holding in Marchman.
Concurrence Opinion
concurring specially.
I concur in the judgment but not in all that is said in the opinion.
The trial judge granted a new trial after finding that "the verdict is decidedly and strongly against the weight of the evidence.” As the majority opinion notes, the new trial was granted under Code § 70-206 which reads: "The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of evidence, although there may appear to be some slight evidence in favor of the finding.”
Code § 70-206, supra, is involved in this case; Code § 70-202 was not relied upon by the trial judge and is not involved here. What the majority says about Code § 70-202 is dicta. It is not merely gratis dictum; it is erroneous gratis dictum, as will be seen below.
Code § 70-202 reads: "In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the presiding judge may grant a new trial before another jury.”
The majority oрinion says of Code §§ 70-202 and 70-206 that: "It has been repeatedly held that these
The Judiciary Act of 1799 provided as follows (Cobb’s Digest of 1851, p. 503): "In any case which has arisen since the signing of the present Constitution, or which may hereafter arise, of a verdict of a special jury being given contrary to evidence and the principles of justice and equity, it shall and may be lawful for the judge presiding to grant a new trial before another special jury. . .” This provision became Code § 70-202. Although the original Act of 1799 gave authority to the presiding judge to grant a new trial where the verdict was contrary to the evidence, the 1848 decision in Hall v. Page, supra, converted that authority into a duty.
In 1854 an Act to regulate the granting of new trials was enacted, as follows (Ga.L. 1853-1854, pp. 46-47):
"1. Section I. Be it enacted by the General Assembly of the State of Georgia, That from and after the passage of this Act it shall be obligatory upon the superior courts of this state, to grant new trials in all cases, where an exception to any portion of the pleadings may be illegally sustained, or illegally overruled by the presiding judge, against the applicant for a new trial; in all cases where any evidence may be illegally submitted to or illegally withheld from the jury, against the demand of such applicant; in all cases where the presiding judge may deliver an erroneous charge to the jury, against such applicant, or refuse to give a legal charge in the language requested, when the charge so requested is submitted in*152 writing; and in all cases where any evidence not merely cumulative in its character, but relating to new and material facts, shall be discovered by the applicant, after the rendition of a verdict against him, and shall be brought to the notice of the court within the time now allоwed by law for entertaining a motion for a new trial.
"2. Sec. II. And be it further enacted, That it shall be obligatory upon the Supreme Court of this state, to reverse the judgment below and award a new trial in every case, whеre it shall appear that an error has been committed in any of the points enumerated in the first section of this Act, by the judge presiding at the trial of the cause.
"3. Sec. III. And be it further enacted, That the judges of the superior courts may have the power to exercise a sound discretion in granting new trials in cases where the verdict may be decidedly and strongly against the weight of evidence, although there may apрear some slight evidence in favour of the finding, and the Supreme Court shall have power to revise and control such discretionary power in the superior courts.” The Act contained no repealеr clause.
As can be seen, Section I of the 1854 Act was obligatory on the superior courts, Section II was obligatory on this court, but Section III was discretionary as to the superior courts.
The Code of 1863, in § 3637, cоntinued the power of the superior courts to grant new trials where the verdict was contrary to the evidence. The discretionary power to grant new trials was continued in § 3641.
The two Code provisions (now §§ 70-202 and 70-206) are different and distinct. In Josey v. State,
What the majority say about Code § 70-202 is dicta. Moreover, it is erroneous dicta. The grant or denial of a new trial under Code § 70-202 is not discretionary.
The majority now rail about Marchman v. State, 234 Ga.40 (
The majority say, by way of dicta, that if a trial judge grants a nеw trial on the ground that the verdict is contrary to the evidence, the bar of Code § 26-506 is not applicable, but if the appellate court finds that the verdict is contrary to the evidence, the bar of Code § 26-506 is аpplicable. Thus, according to the majority, if the trial judge sustains a § 70-202 motion then the defendant can be retried, but if the appellate court finds that the trial judge should have sustained the motion but did not, the defendant сannot be retried. The test should depend, as Code § 26-507 provides, upon the absence of evidence rather than upon the court in which it is found that the evidence did not authorize the verdict.
In my view, if a trial judge finds undеr Code § 70-202 that the verdict is contrary to the evidence, then "the evidence did not authorize the verdict” and retrial is barred by § 26-507. That is what the General Assembly provided. Bethay v. State,
I am authorized to state that Chief Justice Nichols and Justice Bowles join in this special concurrence.