Elisha Spivey was charged with the murder of John Wiggins, and was convicted of voluntary manslaughter. The court overruled the defendant’s motion for a new trial, based upon the usual general grounds and upon seven special grounds, and the movant excepted. Each of the first five of the special grounds alleges that the questioning of various witnesses by the court was error. Wherefore, we shall discuss at length only the first of these grounds.
As a background for the first special exception, we deem L proper to state the'following general outline of the case: The de fendant and his wife, Thelma, had separated, Thelma living at the home of her parents, Mr. and Mrs. J. M. Wooten, and the defendant living several miles away. It had been agreed that first one and then the other of the young people should keep their baby. On May 4, 1927, Thelma went to get the baby. The defendant stated that he told his wife to go on home with the baby and not to be
Ground 1 of the amendment to the motion for a new trial follows: “The court erred in the trial of said case by propounding in the presence of the jury the following questions to the State’s witness, Mrs. J. M. Wooten, while testifying for the State, and eliciting from her the answers as hereinafter set out to said questions so propounded by the court, to wit: Q. Did you see him after his hands were up? Did you see the body fall? A. No, sir; I didn’t see the body fall. You see, the car was full of smoke. Q. Is that the last impression you have in your mind of what you saw? A. Well, I just saw the car full of smoke, and heard the reports of the pistol, you know. Q. I mean, with reference to the man who was killed, what was his position, the last you saw before it was obscured by the smoke. A. Why, he was sitting up the last I saw him. I didn’t see him fall. Q. Was it then that his hands were up? A. I don’t know whether it was then. I suppose it must have been, because 1 couldn’t have seen his hands after he fell over. Q. How far above his head were his hands ? A. Just about like this (illustrating), like he might have just throwed
The Civil Code (1910), § 4863, and the Penal Code (1910), § 1058, inhibit the trial judge, in any case, from expressing or intimating his opinion as to what has or has not been proved, or as to the guilt of the accused, and provide that a violation of this provision shall be cause for a new trial. “The fact that the trial judge asked questions of witnesses is not cause for new trial, unless the complaining party suffered prejudice thereby” (O’Connell v. State, 5 Ga. App. 234 (5), 62 S. E. 1007), but “trial judges should usually leave the examination of witnesses to the attorneys conducting the ease” (Ray v. State, 4 Ga. App. 67 (5), 60. S. E. 816); and where the judge interrogates a witness at length upon
While we know that in propounding the foregoing questions the able judge was only seeking to bring out the truth of the ease, yet we can not escape the conclusion that in so doing he impressed the jury with the idea that he had scant faith in the defense set up by the accused. The State’s main contention was that the deceased was killed in cold blood; while the defendant’s contention was that Wiggins was trying to get a pistol from the automobile'seat with which to shoot, and that he, the defendant, shot to save his own life. If the deceased had his hands above his head when he was shot, he was not at that time trying to get a pistol from the seat of the automobile, and was not seeking to harm the defendant. Wherefore we think that the court’s repeated questions in regard to Wiggins’ hands, especially in the form in which some of the questions were put, were calculated to lead the jury to believe that the court discredited the defendant’s only defense; and this was harmful-error.
However, since all this occurred before the case went to the jury,
In view of the foregoing, we deem it unnecessary to discuss special grounds 2, 3, 4, and 5. Suffice it to say that we would not be disposed to reverse the judgment on any of them.
Error is alleged in ground 6 because, after nine witnesses had testified to the good character of the accused, the court excluded from the jury the testimony of each of twenty-five other named witnesses who would have testified to the good character of the accused. We can conceive of cases where it would be an imposition on the court and a hindrance to justice for countless witnesses to be allowed to testify to a fact already established. However, we do not think this is such a ease. The main contention of the State was that the accused was a cold-blooded murderer, while that of the defendant was that he killed the deceased in order to save his own life. In the case of Seymour v. State, 102 Ga. 803 (30 S. E. 263), it was said: “Evidence of good character is not admitted as a mere make-weight, but as evidence of a positive fact, and may of itself, by the creation of a reasonable doubt, produce an acquital.” See also Shropshire v. State, 81 Ga. 589 (8 S. E. 450); Taylor v. State, 13 Ga. App. 715 (79 S. E. 924).
What effect upon the jury the testimony of one or more of the witnesses who were not allowed to testify would have had can not be surmised. It might have been nil, or it might have had great weight. Our observation is that it does not ordinarily take character witnesses long to give their testimony; but, even if this were not true, the right of a defendant accused of crime to present his defense fully is of vastly more importance than the expedition of trials. We think this ground of the motion discloses reversible error, and so hold.
Judgment reversed.