122 Ga. 786 | Ga. | 1905
Hazlehurst sued Smith upon two promissory notes, dated respectively May 22, and August 18, 1902, and for a balance alleged to be due upon an open account for money and merchandise alleged to have been advanced by the plaintiff to the defendant between the 7th of May and the 15th of August, 1902. Attached to the petition was a copy of the open account, from which it appeared that the plaintiff, as a broker, had charged Smith with the various items of money and merchandise furnished to him at different dates, and had credited him with the net proceeds of various consignments of peaches sold for his account, and had charged him with a small amount for loss on the sale of one lot of peaches. The defendant admitted the execution of the two notes and the correctness of the charges against him upon the open account, except the item for loss on the sale of peaches, but denied the correctness of the items of credit in his favor on the account, alleging that he'had not consigned the peaches to the plaintiff as a broker or commission merchant, to be sold for his (Smith’s) account, but had sold and delivered the peaches to the plaintiff, in July, 1902, consisting of 1087 crates, at $1 per crate, whereby the plaintiff became indebted to him in the sum of $1087, which amount he pleaded as a set-off against
In our opinion, this charge was argumentative and unduly stressed the contention, or rather the argument, of the plaintiff on the evidence before the jury, by singling out and calling the attention of the jury to a particular portion of such evidence which was very favorable to the plaintiff, and stating to the jury the inferences and deductions drawn by the plaintiff therefrom in support of his contention, and without calling attention to any contention or explanation of the defendant in reference to the alleged facts upon which the argument of the plaintiff was based. We say “the argument,” because we think, in these particular instructions, the court did more than to merely state the contentions of the plaintiff. The court had, immediately before this, stated to the jury the main contentions of the parties in the case, , and, in this portion of the charge, was giving the argumentative
In Thomas v. State, 95 Ga. 484, it was held: “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 care-, fully 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.” It was accordingly held to be error “ for the presiding judge to repeat the substance of the testimony of the State’s witnesses as detailed from the stand, and to submit this with the argumentative deductions drawn therefrom by the State’s counsel, as the issues in the case.” The charge with which we are now dealing is open to the objections pointed out in that decision. The judge had presented the leading, and really the only issue made by the
But while, from these decisions, the judge may,not only state the respective contentions of the parties, but, in this connection, may sum up the evidence, provided in so doing he does not express or intimate any opinion as to what fact or facts it establishes, we do not understand that there is any authority in either of these decisions for holding that the judge can state to the jury the argument, or line of reasoning, by which a party seeks to show that the evidence before the jury sustains his contention. Although, in the charge under consideration, the judge was careful to use the expressions, “Hazlehurst contends,” and “Hazlehurst contending,” yet the effect of the charge was to call the attention of the jury to a powerful argument of the plaintiff, in reply to the contention of the defendant and in support of his own contention, consisting in inferences and deductions drawn from the evidence. We think there is a difference between the contention — using the word in its legal sense — -of a party and the argument by which such contention is supported. It may be difficult sometimes to draw the line of distinction between the two, but we think it can be clearly drawn here. The court should not so mix and mingle the contentions of a party with the inferences and deductions of such party, drawn from the evidence, as to present such contentions to the jury in the form of an argument, for this is but to repeat to the jury the argument of a party, instead of simply stating what the party contends the facts of the case are. We think the charge under consideration was liable to leave the impression upon the minds of the jurors that the court was impressed with the strength of the plaintiff’s argument upon facts in evidence, especially when no allusion was made to any argument upon, or explanation of, such facts by the defendant. It follows that the judgment refusing a new trial must be
Reversed.