96 Ga. 430 | Ga. | 1895
1. The rule that one on trial for a criminal offense is entitled to be personally present at every stage of the
It does not appear from the record that the counsel knew of the prisoner’s absence; but granting that he had such knowledge, or is chargeable with it, could his mere silence be held sufficient to constitute such a waiver ? "We think not. In the case of Bonner v. State, 67 Ga. 510, this court held that in view of the right of the prisoner in a criminal case to be present in person throughout the trial, it was error for the judge to recharge the jury while the prisoner was absent and in confinement, although his counsel were present and kept silent. This case is, in principle, directly applicable to the case at bar, because the argument to the jury was a matter of great importance, and of almost, if not altogether, as much concern to the accused as the charge of the court. We therefore are of the opinion that it was a duty devolving upon the judge himself to see to it that the accused was brought from jail to the courtroom, before allowing the argument to proceed; and the omission to perform this duty is of sufficient gravity to require the granting of a new trial. We do not mean to say that the duty of seeing that his client was present did not also rest upon the counsel; but his failure in this respect should not relieve the judge of giving the .proper attention to this matter, he being primarily, and above all others, responsible for the regularity and lawfulness of the trial.
2. The motion for a new trial complains of the introduction of certain evidence. Without setting it forth, it is enough to say this evidence was manifestly hearsay, and tended to show the guilt of the accused in respect to the crime with which he was charged. It was there
3. By way of rebutting the ease made against him by the State’s evidence, the accused sought to show that the crime was committed by other persons; and in this connection, introduced testimony tending to show a motive on their part for committing it. To meet this contention by the accused, the State introduced a witness who, it seems, had undertaken, for reasons of his own, to investigate the question whether these other persons were guilty or not guilty of this crime; and the court, over the objection of counsel for the accused, erroneously permitted this witness to testify that he had neither seen nor heard anything whatever indicating that these persons had any connection with the perpetration of the offense, and had not found anything to confirm his suspicions as to their possible guilt. In other words, the opinions of this witness, resulting from a private investigation made by himself, were allowed to go to the jury. While it would have been entirely proper to permit the witness to testify to relevant facts within his knowledge, it'was for the jury, and not for him, to say what conclusions should be drawn from the same.
We have dealt with the principal questions presented for our consideration; and without intimating any opinion as to the merits of the case, are satisfied that it should undergo another investigation.
Judgment reversed.