Barnes v. State , 113 Ga. 716 ( 1901 )

Little, J.

We have carefully gone over the grounds of the motion for a new trial in this case, and the brief of evidence contained in the record; and a majority of the court are of the opinion that the trial judge committed no error in overruling the motion for a new trial. I dissent from the conclusion reached by my brethren, and am of opinion that the verdict should be set aside and a. new trial granted, solely because of an error committed by the trial judge in his charge to the jury. In the 12th ground of the motion for a new trial it is averred that the court erred in charging the jury as follows: “ The prisoner has the right to make a statement not under oath. It is your province and duty to consider his statement in connection with the sworn testimony in the case, and give it such weight as you think proper. If you find the statement consistent and true, you have the right to believe it in preference to the sworn testimony in the case. You should do so not carelessly and capriciously, but under your oath as jurors, considering the statement in connection with the sworn testimony in the case, and testing it in the light of that testimony, giving it such weight as you think proper. That is a matter exclusively for your determination.” I felt it my duty in the case of Keller v. State, 102 Ga. 506, when it was before this court for consideration, to enter my dissent to the correctness of a similar charge; and in the case of Smalls v. State, 105 Ga. 670, when a like charge in relation to the prisoner’s statement was before this court for review, I was again impelled to dissent to so much of the ruling of the court as approved that charge. Subsequent reflection has but served to confirm the views which I entertained when those cases were considered, that the charge given was erroneous; and that, under it, the defendant was deprived of a material legal right' — do have his statement weighed by the jury and given such weight as they may consider it to be worth, without testing the correctness of it by the evidence in the case, and to have the jury accept the same, if they believe it to be true, regardless of the question whether it is consistent with the evidence or with itself. In other words, our law allows a defendant charged with a crime to make just such statement as he chooses, and it gives the jury the right to reject the evidence if it is inconsistent with this statement, and believe the latter if they choose to do so. The right to make a statement in criminal cases is, in my opinion, an unwise provision of law, and serves no good purpose. Some of the States permit a defendant charged with crime, at his option, to be sworn as a witness in the case, sub-: ject to cross-examination; and to the penalties prescribed for perjury ; and I can but believe that the interests of justice would be better subserved if, in place of the statement, this privilege were by law granted to defendants in criminal cases. But. so long as the present law remains on our statute books it becomes my duty to enforce it as I understand it; and believing that the charge of the court restricted the jury in their absolute right to accept the statement in preference to the evidence, the giving it was error for which a new trial ought to have been granted.

Judgment affirmed.

All the Justices concurring, except Little, J.