Harris v. State , 61 Ga. 359 ( 1878 )

Jackson, Justice.

In this case the defendant was charged with an assault. and convicted of the offense. He made a motion for anew trial, it was overruled and he excepted.

The errors assigned and pressed for reversal here are three.

1. It is urged that the court intimated strongly an opinion to the jury that the defendant was a bad man, by asking a witness the question : “ Mr. Chisolm, have you not heard that defendant once beat his wife with a butcher’s file?” Mr. Chisolm had sworn to the peaceable and good character of defendant, and thereupon the judge asked the question. He says in his certificate to the bill of exceptions that the occurrence took place in his, the judge’s yard, and that he had personal knowledge that defendant did so beat his wife. The judge has the right to ask any question he may choose of any witness, provided he does not thereby show that he takes sides, or express or intimate an opinion. The general rule is that he may and ought to ask questions to bring out truth. 19 Ga., 102. But if in so doing he shows his opinion of the guilt of the accused, he thereby commits error. Here Mr. Chisolm answered that he had not heard it; but the impression was made by the question that the judge had heard it, and that the judge believed the accused to be a bad, violent man, and that he ought to be convicted. We think that it bore unlawfully upon the accused, and might have turned the scale against him.

Nor do we think that the certificate helps it. The judge did know of the fact, and it got to the jury that he did, without any oath to carry it to them.

2. The evidence was conflicting about the accused having any knife, when he advanced, and it preponderated that if he did he had it cleaning tripe ; therefore, we think the court should not have said to the jury that he ought to have laid down his knife, in the charge complained of. Its effect was to tell them he had the knife, in the opinion of the judge, and that his purpose in his opinion was to use it.

3. On the whole, while we cannot say that he might not have been convicted on a fair trial, the case seems to us not a very strong one from the evidence; and, therefore, without ruling that the verdict is so decidedly and strongly against the weight of the evidence as to require a new trial on that ground, and without expressing a decided opinion upon it, we will say that the evidence does not require the verdict to such a degree as to demand that it shall stand notwithstanding the errors of the court; therefore we reverse the judgment an d grant a new trial.

Judgment reversed.