3 Ga. App. 649 | Ga. Ct. App. | 1908
Isbam Waters was convicted on an indictment charging him with the crime of burglary. He made a motion for a new trial, on the general grounds, and on four special grounds. The first three special grounds are based upon alleged errors in the ruling of the court in refusing to exclude certain testimony introduced b}'- the State. The 4th special ground assigns error in the following charge to the jury: “The State insists that it has connected this defendant with the criminal act. They insist that this was a burglary, and that they have shown this by circumstantial evidence which connects this defendant with the criminal act; and they insist that they show it by circumstances. The State further contends that about the day the house was broken open and entered, the defendant was in that neighborhood, and that he had an opportunity to have committed the act; that he was after-wards seen with a gun, a parasol, and bundle of clothes, which they contend were such as were taken from that house. They also contend that he was afterwards found in possession of the suit of clothes, which they contend was the property of John Mc-Crary, the person whose house they insist was burglarized. These are some of the circumstances relied upon by the State.” It was insisted that this was an improper and an unfair -summing up of the testimony for the State, and was an expression of opinion by the court as to what had been proved by the State. The evidence for the State showed, that the dwelling-house of the prosecutor had been burglarized on the 15th of July, in the daytime, somewhere between sunup and dinner time; that at the time of the burglary there were stolen from the house a double-barrel breech-loader, a suit of clothes, three dollars in money, a plug of tobacco, and a razor; that on the morning of the burglary the defendant left the residence of one Beech, about a mile from the scene of the crime, and went in the direction of the prosecutor’s house; that on the same day he was seen by two other witnesses, about eight miles distant from the prosecutor’s house, traveling the public road and going in the opposite direction from said house, having in his possession a breech-loader, a parasol, and a bundle under his arm. Over a month after the commission of the offense, a coat and a vest were found in the house where the defendant and his wife lived, and this coat and vest were identified by the prosecutor as his property, and as having been in his house when it
1. An analysis of the evidence substantially stated above shows that it was entirely circumstantial, and not very strong in its incriminating character; but we can not say that there was not some evidence in support of the verdict. Therefore, the discretion of the trial judge in refusing a new trial on the general grounds will not be disturbed.
2. The first three special grounds of the amended motion, which assign error in the refusal to exclude certain testimony, do not-disclose that any objection was interposed at the trial to the admission of this testimony; nor is there any reason now assigned why the testimony was not admissible. For these reasons we can not consider these assignments.
3. The 4th ground of the amended motion, which assigns error in the summing up by .the court of the facts relied upon by the State to establish guilt, is well taken. The charge of the court, falls cleariy within the ruling of this court in Rouse v. State, 2 Ga. App. 184 (58 S. E. 416), and’ numerous decisions of the Supreme Court. In McVicker v. Conkle, 96 Ga. 597 (24 S. E. 28), it is said that, “in the courts of this State, juries, and not judges, sum up the evidence.” It will be seen, by reference to the charge objected to, that the judge undertook to sum up to the jury all the facts and circumstances relied upon by the State to prove the guilt of the accused, and, at the end of his summing up, expressly stated to the jury that “these are some of the circumstances relied upon by the State.” This summing up by the court was argumentative in character, and tended to call to the attention of the jury, and to enforce upon their consideration, the incriminating character of the various facts and inferences'which were narrated,
We think also that the last sentence of this charge, — “these are some of the circumstances relied upon by the State,” — was a clear intimation by the court that such circumstances were proved, and, for that reason, was a violation of section 4334 of the Civil Code.
We feel, therefore, constrained to grant a new trial in this case, because we think that the learned trial judge erred as herein, pointed out. Judgment reversed.