61 Ga. 401 | Ga. | 1878
Lead Opinion
These sections of the Code stand as a kind of constitutional law between bench and bar. They entitle the counsel to have the written word, instead of oral tradition. They provide for preserving and handing down the word as a sure and enduring memorial of what was actually delivered. There is to be no controversy over the text of the charge; no uncertainty as to what revelation fell from the bench into the jury box. The judge is not to speak, but to read; and when his manuscript is exhausted he is to become silent. It would seem that if counsel cannot depend upon the guaranty afforded them by these sections of the Code, they can depend upon no promise made to them in the law. If they cannot get a written charge, what can they get ? What are they to trust in the whole compass of the statutes, if they are to be disappointed when they cite such peremptory language as that found in these two sections ? The judge has no discretion; he must write out his charge and read it to the jury, and he must not “give any other or additional charge.” 38 Ga., 304; 54 Ib., 231; 55 Ib., 208; 57 Ib., 285, (18). As to substituting stenographic reporting in place of first writing, and then reading the charge as written, that is for the general assembly, and not for the judiciary; and, as to there being no complaint that the charge was not correctly reported, it cannot be that in order to get a written charge, when any other is positively forbidden by statute, the plaintiff in error must show or suggest that the oral charge was not
Judgment reversed.
Concurrence Opinion
concurred, stating that if the evidence clearly preponderated in favor of the verdict, he would not be inclined to reverse, notwithstanding the manifest error of the court in failing to reduce the charge to writing; but,as the evidence is nicely balanced, he concurs in the judgment of reversal for the error aforesaid.
Dissenting Opinion
dissenting.
Where the presiding judge, in not delivering his charge in writing, is under the impression that the request of counsel, so to deliver it, had been withdrawn, and where the entire charge, delivered in parol, was taken down by the stenographer of the court, verbatim et literatim,, and there is no complaint that it was not taken down fully and correctly; and, where there is no other valid ground for a new trial, and no pretence that the plaintiffs in error were hurt by the omisssion of the judge to do the mere manual labor of writing out his charge, instead of letting the stenographer write it as he spoke it, I hold that the judgment of the superior court overruling the motion for a new trial ought not to be reversed, and I dissent from the judgment of this court reversing said judgment.