1 Ga. App. 542 | Ga. Ct. App. | 1907
The plaintiff in error was indicted in Richmond superior court for the crime of assault with intent to 'murder. On his trial, the solicitor-general abandoned the charge of assault with
The testimony for the State presents substantially the following case: On the day named in the indictment, the prosecutor, Walter McDonald, a boy fourteen years of age, with a companion thirteen years of age, went to the watermelon patch of the defendant for the purpose of taking a melon to eat. It was in the afternoon, between sundown and dark. While they were in the patch, and before they had taken any melon, without being hailed or ordered off, the defendant shot Walter McDonald in the face with a shotgun, putting-out both of his eyes. Both boys positively identified the defendant. The same afternoon, a few hours before the shooting, the defendant had expressed his suspicion that Walter McDonald was taking his melons, and that he intended to give him “a dose of shot.” There was also evidence that one barrel of the defendant’s shotgun indicated that it had^ been recently shot, and that tracks similar to his were made in the melon patch near the place where the boy was shot. If these facts were true, a verdict would have been authorized for the higher felony. The threat to shoot, the preparation to carry out the threat, the speedy execution of the threat, the deliberate firing at the face of the boy twenty-five or thirty feet distant, without warning and without ordering him off the premises, indicate a'crime deliberately planned and cruelly executed. The defendant contended that he was not guilty. He said that he did not do the shooting; that he had no knowledge thereof until the day following, when he heard of it first from some friend who had read an account of the shooting in the.newspaper. He denied that he made the threat to shoot. He set up an alibi, and proved it by the'
The foregoing statement substantially sets forth the contentions, of the State and the defendant, and it is seen how vitally important it was that the evidence submitted in behalf of the defendant-should go to the jury handicapped by no expression or intimation on the part of the court that would impair its full force and effect, or prevent a free and impartial consideration thereof. The charge of the court, in submitting these contentions to the jury,, can not be justly criticized in any respect. It was clear, comprehensive, accurate, and impartial. Throughout the entire trial, the scales of justice were held with even and steady hand, except in the two instances to which we will now call particular attention.
After a most careful consideration of these objections, we are constrained to hold that the remarks of the learned court in announcing his ruling, are justly subject to the criticisms made. To see the full force of the objections, it must be remembered that the circumstances of the tracks and the condition of the gun, which the defendant insisted indicated that he was not guilty, had been testified to by these neighbors; and these, facts had been controverted by the State, by the testimony of a policeman who made an examination of the gun and the tracks, in connection with a deputy sheriff. Both sides of the contention had been placed before the jury. In excluding the testimony of the shells, on the ground that the defendant could not introduce in evidence any statement or act of his subsequent to the alleged offense, it was certainly a very serious disparagement of the testimony of the defendant’s neighbors, who were his witnesses, to characterize their investigations as having been made in his interest, at hiá instance, and in his presence and with his assistance, and to go still further and state that such investigations were not those that an officer of'the law would make, looking for proof of guilt. While this comparison might have been the truth as an abstract proposition, in the pertinent and concrete manner in which it was put by the court it must have
We are aware .that some latitude should be allowed the trial court in ruling upon the admissibility of testimony. And the Supreme Court in many cases has gone very far in ruling that it is not necessarily a cause for a new trial when the judge, in passing upon questions of law touching the admissibility of testimony, expresses an opinion as to what the evidence tends to show, and the weight to which it is entitled. See Wyley v. Stanford, 22 Ga. 397; Scarborough v. State, 46 Ga. 32; Croom v. State, 90 Ga. 430; Oliveros v. State, 120 Ga. 237. But a close examination of these cases will show that the court has never gone to the extent of permitting the trial judge, in giving his reasons for his ruling, to-disparage the testimony of one side and to accredit the testimony of the other side, or to violate the spirit of the law as contained in section 4334 of the Civil Code. As said by the Supreme Court in the case of Florida Central & P. R. Co. v. Lucas, 110 Ga. 121, “While a judge, in discussing with counsel the admissibility of testimony, may, for the purpose of testing the accuracy of their positions and giving the reasons for his rulings thereon, refer to the evidence* or the statements of witnesses without necessarily violating section 4334 of the Civil Code, it is not proper to go outside of the line of legitimate discussion upon the point presented and allude to the testimony of a particular witness in such a manner as apparently to give to it judicial endorsement and approval.” And see Alexander v. State, 114 Ga. 266. Applying this rule to the remarks of the trial judge now under consideration, it seems clear to our minds that he not only gave an apparent, but an express judicial endorsement and approval to the testimony of the officers of the law which had been introduced by the State; and, to make his error, more hurtful, he at the same time, by comparison, expressly disparaged and discredited the testimony of the defendant’s witnesses. This made a very clear and harmful violation of section 4334 of the Civil Code, and it was destructive of that
We can but think that this examination by the judge of the witness made the impression on the jury that the time when the shot was fired was as contended for by the State. It is impossible to lay down any inflexible rule by which the violation of section 4334 of the Civil Code can be determined. The facts in each ease, and what may be called the general complexion of tlie case, must be considered, in arriving at a proper conclusion. But where an examination of a witness by the trial judge, couched in vividly descriptive language, stresses the contention claimed by one party of a vital point in the controversy, we think it wholly improbable that the jury did not make the reasonable inference that the court entertained an opinion on the subject in harmony with the trend of his questions. Beginning with the case of Kelly v. State, 19 Ga. 425, the Supreme Court has frequently ruled that “it is not only the privilege, but the duty of the court, to propound such questions to reluctant witnesses as will strip them of the subterfuges to which they resort to .evade telling the truth.” This fervid language has been repeated in totidem verbis in several subsequent decisions. Without meaning to criticize either the language or the ruling of the court, we do not give our adherence unreservedl}r to the statement. We think the court should, when some merely formal question has been omitted which might vitiate the entire trial, ask such questions as would be appropriate to such an exigency. But we think the “stripping” process should be left to counsel engaged in the case, and could not possibly be indulged in by the court without a violation of the spirit of section 4334 of the Civil Code. It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial, without in some manner, and t® some extent, indicating his own opinion. Every practitioner knows how eagerly alert jurors are