Green v. State , 43 Ga. 368 ( 1871 )

Lochrane, Chief Justice.

This was an indictment against certain parties for the offense of assault and battery, upon the trial of which the plaintiffs in error were convicted, and the motion was made for a new trial upon eight grounds, which we will dispose of in their order. First, because the jury found contrary to the evidence, and second, against the weight of the evidence. In the opinion of the Court, the evidence in this case was sufficient to sustain the verdict. In fact, it was conclusive of the guilt of the parties, and stands unredeemed by a single, solitary excuse or provocation, and the act was wanton in every aspect in which the Court may view it.

1. The third ground of exception is in relation to the Court below allowing a leading question, in which we find there is no error.

2. And we also concur with the Court below in overruling the fourth ground of error assigned, under section 3815 of the Code.

3. The fifth ground of error assigned is, that the Court erred in ordering or requesting an attorney of said Court, to take down the testimony in said case, the same not being required by law. IVe merely notice this assignment of error, not for the purpose solemnly to adjudicate it, but for the purpose of stating that no officer is clothed with more incidental powers in Georgia, than a Judge of the Superior Court; that it is the highest office of original jurisdiction known to the Constitution and laws; that none is more responsible; none higher in all the administrative elements of justice, and the right of the Court to have testimony taken down in any case, is a question purely with himself, and not the subject-matter of criticism or cavil elsewhere. It is a commendable practice approved by this Court, though it requires no sanction by such approval.

4. The next ground of error is, that the Court interrupted the counsel in misstating the testimony, and read from said brief of evidence what was sworn. Code, section 3183, declares “it is error for any or either of the Judges of the Superior Courts of this ¡State, in any case, whether civil or criminal, or in equity, during its progress or in his charge to the jury, to express or intimate what has or has not been proved, or as to the guilt of the accused.” The effect of this section is misconceived, if it is held to apply to every act of the Judge in getting the testimony properly before the jury. Will it be hold in the progress of the case, where counsel differ as to what has been sworn, that the Court may not correct error, by recalling the witness, if possible, or by stating from his notes or his remembrance, what a witness swore? Is it not his duty to preserve the decorum of justice, and may he not prevent perversion or misstatement of evidence? To give this section such a construction, would be to destroy the power of the Court. The intention of the law is to prevent the Court from usurping the province of the jury, and alleging the fact to be proven which is controverted, but not to inhibit him from putting before the jury the truth of what a witness swore. The law must have a reasonable intendment; and under the decision in 11th Georgia, 256, it is laid down that it is the duty of the Court not to suffer the proof to be perverted, either intentionally or through inadvertence; and the decision of the Court is, it is not only the privilege of the Court, but its solemn duty, to interrupt counsel when misstating the testimony to the jury. Any other rule would be violative of the proper government of the Courts, and leave the Judge powerless, which could not be the intention of the law.

5. The next ground of error is predicated upon the action of the Judge, on the request of the jury, desiring to know the evidence in relation to the connection of an old man with the transaction, when the Court read to them that portion of the evidence referring thereto. This Court in Wade vs. The State, upon which the error assigned was that the Court erred in calling the jury from their room, after they had retired to consider their verdict, into the Court room, and reading over to them the written testimony as taken down by the Court, without the consent of the prisoner’s counsel, and while the prisoner was absent: Held, “This was clearly error. The Court had no more authority, under the law, to read over testimony to the jury, affecting the life or liberty of the defendant, in his absence, than it has to examine the witnesses in relation thereto, in his absence. The defendant has not only the right to be confronted with his witnesses, but he has also the right to be present, and see and hear all the proceedings which are had against him on the trial before the Court. It is said the presumption must be, that the Court read over the testimony correctly, and read over all that was delivered against the defendant; therefore he was not injured. The answer is, that it was the legal right and privilege of the defendant to have been present in Court when this proceeding was had before the jury, in relation to the testimony delivered against him; and he is to be considered as standing upon all Ms legal rights, waiving none of them.” This case is distinguishable from the case at bar, as the prisoner was, in contemplation of law, present, and the evidence read over was in relation to one not upon trial, and did not, in the opinion of the Court, affect the merits of the case; besides, we are not prepared to say that the Judge may not, at the request of the jury, in the presence of the prisoner, read over to them a portion of the testimony taken down under his order. Under the facts in this case, however, we are satisfied that this act by the Court is insufficient to set aside a verdict so overwhelmingly sustained by the law and facts.

Judgment affirmed.