Delk v. State , 135 Ga. 312 ( 1910 )

Holden, J.,

specially concurring. I concur in the judgment of reversal, but do not think the charge referred to in the 2d division of the opinion is subject to the criticism made thereon. The court, in charging the jury regarding the defendant’s statement, properly stated that the jury “may give to it such weight and credit as they may see fit,” and “may believe it in preference to the sworn testimony.” The charge immediately following the statements of the court above referred to, that the jury could not captiously disregard the testimony of a witness, and that they should believe a witness unless impeached or his testimony “set aside by some method known to the law,” was not subject to criticism because given in close proximity to the charge in regard to the defendant’s statement. It was at least just as appropriate to charge that the testimony of a witness could not be captiously disregarded, immediately after charging on the defendant’s statement as indicated in the second sentence hereof, as at any other place in the charge. It was proper to give both propositions of law in charge, and to give them together subjected the charge to no criticism. The charge that the testimony of witnesses was not to be disregarded unless it “was set aside'by some method known to the law,” in view of that portion of the charge which preceded it, was in effect an instruction to the jury that one method of setting it aside was to believe the statement of the defendant in preference to such testimony. The further charge that it was the duty of the jury to find the truth “under the rules of law given you in charge by the court” could have no other meaning,-in view of tlje immediately preceding charge on the defendant’s statement, than that in finding the truth they should consider the rule of law given them, that they could give the statement such weight and credit as they might see fit, and could believe it in preference to the sworn testimony. The charges upon both subjects stated correct principles of law, and the charge relating to the testimony of witnesses was not subject to criticism because given in immediate connection with the charge on the defendant’s statement. Indeed, it would seem that where charges containing correct principles of law in regard to the statement of the defendant and the testimony of witnesses are given, instead of it being misleading to the jury to give them in immediate connection with each other, just the reverse would be true; that is, the jury would thereby gain a better understanding of the law in reference, to these two subjects.