Whitaker v. StateWhitaker v. State
- Reporters:
- , ,
- Before:
- Fish
The Court of Appeals bas certified to this court certain questions, which we will state and deal with seriatim.
*140
Where, however, a paper purporting to be a brief of evidence has been filed and approved by the trial judge, but from which it appears no bona fide effort has been made to comply with the provisions of Civil Code, § 6093, requiring that a brief of evidence shall be a condensed and succinct brief of the material portions of the oral testimony as well as the documentary evidence, the writ of error should not be dismissed, but, as has been held in numerous cases by this court, if there be in such a case assignments of error which do not involve a consideration of the evidence for their determination, they will be decided. Crumbley v. Brook, 135 Ga. 723 (70 S. E. 655). To the same effect see the cases cited in 2 Enc. Dig. Ga. R. 612 (D); 13 Ib. 233 (C2); 15 Ib. 310 (IV-A-1-a).
It follows that the first question must be answered in the negative ; that is, that a motion for a new trial, accompanied by a paper purporting to be a brief of the evidence filed and approved by the trial judge, but in the preparation of which it appears there has been no bona fide effort to comply with the provisions of the Civil Code, § 6093, does not stand upon the same footing as a paper presentéd as a motion for a new trial unaccompanied by anything purporting to be a brief of the evidence introduced on the trial.
(a) In view of what we have already said in answer to the foregoing questions it is apparent that this inquiry must be answered in the negative; that is, such a case as that stated should not be dealt with by the appellate court as though no valid motion for new trial had been filed by the movant, because unafcompanied by any paper purporting to be a brief of the evidence.
(5) The second inquiry embodied in the third question is as follows: Should the Court of Appeals in such case as just above stated “reverse the judgment overruling the motion for new trial if it-discovers charges of the court which appear to be abstractly erroneous, or, in a criminal case, not applicable to the charge made in the indictment, or that there have been errors prima facie committed in the admission or rejection of testimony, and these errors are complained of in the motion for new trial?” Our answer is, if it should be apparent from a consideration of the record, other than the so-called brief of evidence, that the plaintiff in error has been manifestly injured by one or more of such errors, without regard to what the evidence on the trial may have been, then there should be a reversal of the judgment overruling the motion for a new trial; otherwise the judgment should be affirmed, as it is incumbent upon the plaintiff in error to show not only error but that he has thereby been injured. In McPherson v. Chandler, 137 Ga. 129 (72 S. E. 948), where the action was for illegal arrest and malicious prosecution, this court found the brief of evidence so imperfect in omitting essential parts of the evidence that it declined to treat it as made up in compliance with the requirements of Civil Code, § 6093, and held that none of the assignments of error requiring á consideration of the evidence could be passed on, but reversed the judgment of the trial court in overruling a motion for new trial on several assignments of error in the motion, on charges of the court and the exclusion of evidence, which could be considered and determined without reference to the so-called brief of evidence, and which were manifestly prejudicial to the plaintiff in error. In another recent case, Monroe v. Martin, 137 Ga. 262 (73 S. E. 341), the suit was on a promissory note brought by the *143executor of the payee against the maker, who pleaded a contemporaneous written agreement between himself and the payee, containing a covenant never to sue on the note. The case had formerly been before this court (Martin v. Monroe, 107 Ga. 330, 33 S. E. 62), when it was held ‘that such covenant in effect relieved the maker from liability on the note as to the payee thereof and his legal representatives. On the last trial the plaintiff amended his petition by alleging that the defendant on stated occasions “recognized the validity of such note and promised your petitioner to pay the same to him.” The court on that trial instructed the jury as to such amendment to the following effect: That if plaintiff’s testator, at the time the note was executed, covenanted with the ■defendant in writing never to sue on the same, yet if, after the testator’s death, the defendant expressly agreed to pay the note to plaintiff as executor, the moral obligation resting on the defendant to pay the debt would be sufficient to sustain the new contract and promise to pay the note, and the defendant would be liable to pay the same, notwithstanding such previous covenant with the-plaintiff’s testator. There was a verdict for the plaintiff. The defendant moved for a new trial, which motion was overruled, and he excepted. Upon the hearing before this court counsel for the defendant in error contended that the brief of evidence, which had been duly approved and certified to this court, should be disregarded, for the reason that it was not made up in compliance with the provisions of the Civil.Code, § 6093. Presiding Justice Evans, who delivered the opinion, said: “This court has frequently pointed out the necessity of a compliance with the act of the General Assembly in the preparation of briefs of evidence. Only relevant and material evidence should be included, and repetitions should be avoided. We do not find it necessary to examine the brief of evidence in ruling upon the controlling points in this ease. Where points of law are made in the record, and they can be passed on without reference to the evidence, this court will decide them. The instruction, which we hold to be erroneous, does not require a consideration of the evidence to demonstrate the necessity of another trial.” In that case it was apparent from the pleadings in the case, without reference to the evidence, that the erroneous instruction was palpably injurious to the defendant. Another case where this court passed on legal questions not dependent for de*144termination on the evidence, which were raised in a motion for a new trial, and where the evidence was not briefed in compliance with the statute, is Equitable Mortgage Co. v. Bell, 115 Ga. 651 (42 S. E. 82). Other cases where the same rule was followed but in which there was no motion for new trial are, St. Amand v. Lehman, 120 Ga. 253 (47 S. E. 949), DeLoach v. Planters Asso., 122 Ga. 385 (50 S. E. 141), and Crumbley v. Brook, supra. It is impracticable for this court to make up a catalog of instances where, in the case stated by the Court of Appeals in the second division of the third question, the judgment of the trial court in refusing a new trial should be reversed or affirmed on account of one or more of the errors committed by the trial court as stated in the second division of the question under consideration. The appellate court must, when such cases come before it, determine in each case whether the assignment of error can be passed on and determined from the record without reference to the evidence, and, if the assignment of error be meritorious, whether or not the plaintiff in error has been thereby manifestly injured. The same rule is applicable to both civil and criminal cases.
An instruction to the jury upon the trial of a criminal case, not applicable to the charge made in the indictment, might for the very reason of its patent inapplicability, be not cause for reversing a judgment overruling a motion for new trial. Suppose upon the trial of one charged with larceny an instruction should be given defining express or implied malice. It would be manifest that such an instruction could not possibly have injured the accused. On the contrary, if on the trial of one charged with rape, the law as to the offense of seduction should be given in charge and the accused should be found guilty of seduction, a judgment overruling the motion of the accused for a new trial, wherein such instruction was excepted to, should be reversed even though the evidence could not be considered, for obviously the accused would have been injured by such an erroneous instruction. Of course such illustrative cases might be stated practically without number. So suppositive cases might be stated where error in the admission or rejection of testimony was so slight’ or immaterial as to be harmless, without reference to the evidence submitted in the ease. On the other hand eases may be easily supposed where the testimony admitted or rejected was of such a character, when considered in connection with *145the record aside from the evidence, as to make it manifest that the party complaining was injured by its admission or rejection.