Hunter v. State , 133 Ga. 78 ( 1909 )

Lumpkin, J.

We deem it unnecessary to elaborate the head-notes, except in one particular. This court has frequently held that a lawyer should not be permitted to make statements of facts concerning the issues on trial, in the presence of the jury, outside of the evidence and prejudicial to the adverse side. We wish once more to state emphatically that such a practice will not be permitted. It is not only improper in a lawyer to indulge in it, but it is improper on the part of a judge to allow it to be done. If an effort is made to thus get facts before the jury, not by legal evidence, but by the bald statement of counsel, the presiding judge should, on having his attention directed to it, promptly stop it, rebuke counsel, and exclude the matter from the attention of the jury in a clear and explicit manner. Even without a motion, if the judge sees that improper methods are being used, he should interpose and stop them. If facts material to the case and prejudicial to the adverse side are stated by an attorney in the presence of the jury, without evidence thereof, and under the circumstances it seems improbable that the injury so effected can be cured by rebuke and instructions, a mistrial should be granted on motion. It is true that a mistrial may cause a loss of time and a repetition of some work; but if the minds of a jury have been so infected or prejudiced by improper statements of facts outside the evidence that it is not probable that the case can be fairly and impartially tried, the trial should not proceed to a verdict under such circumstances, over the objection of the injured party. Time is important, but justice is more so. The State of Georgia, in administering the law through its courts, can not afford to secure a verdict of conviction of murder against a defendant by unlawful methods. We are not curtailing the legitimate latitude of argument. We are referring to getting facts before a jury by unsworn statements instead of evidence.

We do not mean to say that the solicitor-general in the case now before us was guilty of intentional misconduct, or that the statement made by him was intended to affect the jury, or to place before them facts bearing on the case and not shown by the evidence. On the contrary, the circumstances would- seem to indicate that the statement made by him was inadvertent rather than designed. The indictment on which the accused was tried was against him alone. He sought to show that the murder with which he was charged had been committed by a witness for the State. While the latter was on the'stand, it was drawn from him, by cross-examination of counsel for the defendant, that he had been in jail for sometime preceding the trial, charged also with the murder. From his testimony it would seem that he was still held as a prisoner. At the close of his testimony, the solicitor-general in open court, before the jury, stated that “the grand jury had failed to find a bill against the witness, and that he (the solicitor-general) wished to discharge him.” Apparently this was not done as stating to the jury a fact to be considered as evidence, but was addressed to the court as expressing a desire to discharge from custody the witness who had just left the stand. It was not good practice. The ease against the witness and the case against the accused should have been disposed of separately, and the witness should not have been discharged in the presence of the jury pending the trial of the accused and just after the witness had given his testimony against the accused. If it was competent to show a return of no bill by the grand jury, as affecting the case on trial, the way to do so was by evidence. But the circumstances were not such as, in our opinion, to indicate bad faith or an intention to get before the jury improperly facts prejudicial to the accused. The presiding judge promptly withdrew this statement from the the jury, and instructed them to give no consideration to it in maldng up their verdict. The indictment under which the accused was being tried was before the jury, and showed on its face that it did not include the witness as a defendant. We do not mean that a trial judge must declare that bona, lides of counsel will necessarily be an answer to a motion for a mistrial; but we can not say that the effect of the statement here made was not cured, or that there was error in refusing to grant a new trial. ,

Judgment affirmed.

All the Justices concur.