46 Ga. App. 347 | Ga. Ct. App. | 1933
Lead Opinion
William Ryan was indicted for committing the offense of assault with intent to murder on December 7, 1931, in Chatham county, by shooting at E. A. Fitzgerald with a pistol. A jury found the defendant guilty of the crime charged and fixed the penalty at from six to eight years. The exception is to the judgment overruling Ryan’s motion for a new trial, based upon the usual general grounds and seventeen special grounds.
Special ground 7 avers that the following charge of the court was argumentative and prejudicial to the defendant, and “set forth too strongly the contentions of the State, without at the same time setting forth the contentions of the defendant in that portion of the charge given, or elsewhere in the charge:” “The contention on the part of the State is that an agreement of conspiracy was entered into in Louisville, Kentucky, by this defendant and three fellow-conspirators ; that there was stated by one of them that he knew in this city a man named A1 Brown, who was said to carry a roll of money of from $1500 to $2000 on his person and a diamond ring, and they would come down here and ‘knock him off*. See whether or not these persons did or did not come here. Were they here? If so, for what purpose were they here ? If they were, did they do anything in pursuance of that alleged conspiracy? If so, what is the truth of it?” “The State’s contention is that one or more of
In ground 8 the same exception set out in ground 7 is taken to the following charge of the court: “The State’s contention is further that this defendant made a confession; that the confession in substance was that he and his alleged coconspirators, in Louisville, Kentucky, entered into this agreement to come down here to find this man Brown — ‘knock him off,’ and get his money. . . Is there any other evidence that corroborates this alleged confession? The State insists that there is. . . The State contends that the confession is corroborated; that there were here at that time the men who this defendant says were with him in Louisville; that they got this automobile, or two of them. The State insists that they did get Brown physically — got him and they put him in the automobile. See whether or not this is corroborative of the alleged confession. What became of those alleged conspirators? Where did they go ? What did they do ? Look at the facts, and you determine whether or not that alleged confession has been corroborated. If it has not been corroborated, then you can not convict this defendant. If you find it has been corroborated, then you would be authorized to find that tins defendant had entered into this alleged conspiracy.”
In special ground 10 the following excerpt from the charge of the court is assigned as error for the identical reasons stated in the two preceding grounds: “What is the truth of it ? Was this man,
“The office of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issues involved in the pending trial, as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents law and fact make a verdict. In delivering his charge the trial judge should carefully avoid an invasion of the province of the jury. He should refer to the evidence only so far as is necessary to present the leading issues in' the cause, leaving the minor contentions of opposing counsel to the consideration of the jury under appropriate general instructions. It should contain no such summary of the evidence as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon.” Thomas v. State, 95 Ga. 484 (3) (22 S. E. 315). Kefering to the Thomas case, Justice Cobb, speaking for a united court in Nelson v. State, 124 Ga. 8, 10 (52 S. E. 20), said: “It was held in the case from which the above quotation was made that it was error for the presiding judge to repeat the substance of the testimony of the State’s witnesses, and submit these, with the argumentative deductions therefrom by the State’s counsel, as issues in the case. The judge should not in his charge take up and recapitulate in detail the testimony of the witnesses as it was delivered from the stand, in such a way as is calculated to leave the impression upon the minds of the jury that the testimony of such witnesses has established the fact contended for by one of the parties, or that such testimony is of a nature that is entitled to more consideration than other testimony-in the case. McVicker v. Conkle, 96 Ga. 584, 597 [24 S. E. 23], The ruling in the case just cited practically goes to the extent of holding that it is error for the judge to state to the jury what a witness has testified, such a statement being in effect an expression of opinion as to what has been proved. Suddeth v. State, 112 Ga. 407 [37 S. E. 747].” In Waters v. State, 3 Ga. App. 649, 653 (60 S. E. 335), the following language occurs: “We would not be understood as holding that the trial judge has no right to state the contentious of the parties and the issues, but he must state such contentions and issues fairly and impartially, without an opportunity for the jury to gather from his statement any leaning to one side rather than the other.
We have grouped grounds 7, 8, and 10 for the reason that each of them bears upon the same question and is controlled by the same principles of law. We have seldom seen a more detailed, emphatic, argumentative, and Vivid statement of the contentions of the State in a criminal case. Our conclusion is that each of the quoted excerpts from the charge of the court discloses reversible error, and that, when taken together, the harmful effect of the charge is greatly emphasized.
Several of the special grounds relate to the court’s charge, or the refusal to charge, upon the law of conspiracy. The charge given upon the subject of conspiracy comports with the rule laid down in Berryhill v. State, 151 Ga. 416 (107 S. E. 158), and we discern no reversible error in any of these grounds. We are likewise of the opinion that the court’s charge upon the subject of confessions was full and fair. One of the remaining grounds is abandoned; several of them are merely amplifications of the general grounds; and others present questions that may not arise upon another trial of the case. The general grounds will of course not be considered. Judgment reversed.
Dissenting Opinion
dissenting. Under the ruling in Brown v. State, 6 Ga. App. 356 (64 S. E. 1119), the excerpts from the charge in the instant case, stating the contentions of the State, were not erroneous. As was said by this court of the charge of Judge Hammond in the Brown case, when the charge of Judge Meldrim in the instant case “is viewed in connection with its context, it will be seen that it is not argumentative, and that it does not stress the State’s contentions to the exclusion of those of the defendant, but