Allen v. State , 18 Ga. App. 1 ( 1916 )

Wade, J.

1. “Prisoner at the bar. An accused person, while on trial before the court, is so called.” Black’s Law Dictionary, 939. One accused of crime, who is actually on trial, is in legal effect a “prisoner at the bar,” notwithstanding he has given bond' for his appearance at the trial. He is a “prisoner” if held in custody either under bond or other process of law, or when physically held under arrest, and when actually on trial he is a “prisoner at the bar.” The trial judge therefore did not err in referring to the accused, during the progress of the trial and in his charge to the jury, as the “prisoner” and the “prisoner at the bar,” notwithstanding the accused was under bond. See, in this connection, 6 Words & Phrases, 5566-7. The description “prisoner at the bar” is altogether as applicable to one on trial for a misdemeanor as for a felony, and the statute providing for the examination of jurors on voir dire in trials for felonies expressly prescribes this form of reference to the accused, regardless of whether the accused be under bond or not. Penal Code, § 1001.

2. There is no substantial merit in the 2d, 3d, 4th, and 5th grounds of the amendment to the motion for a new trial, complaining of certain excerpts from the charge of the court, either as containing intimations of opinion as to what had or had not been proved in the case, or as being' argumentative, or as unduly stressing the contentions of the State, or as incorrectly stating the contentions of the State or of the defendant. The various charges complained of, when taken all together, were not in violation of section 1058 of the Penal Code (Civil Code, § 4863), and were not harmful to the defendant, but fairly presented the issues involved. The contentions of' both the State and the accused were stated with fullness, but with apparent fairness, and thos'. of the State were not unduly stressed. Brown v. State, 6 Ga. App. 356 (64 S. E. 1119).

3. There was no error in the -instruction given the jury as to the weight they might attach tcS the statement of the defendant. The instruction that “while the prisoner goes upon the stand where the witnesses go and give their testimony, he is not under oath,” was not subject to the exception that it was argumentative; nor did the reference to the defendant as a “prisoner” minimize, disparage, or belittle his statement to the jury. The charge of the court placed on the statement the value attached to it by the statute itself. Penal Code, § 1036.

4. There was no harmful error in the following excerpt from the charge: “You are not to determine a hare physical fact, which in this particular case is not disputed, that Sam Allen stabbed Tom Bennett twice with his knife; you are to determine what was the spirit, what was the motive, and what was the intent back of this.” The uncontradicted testimony established the fact of the stabbing, and the defendant said in his statement to the jury, “I reckon I cut at him right here [indicating], and, as he turned, his shoulder right here [indicating]. It was all done that quick [snapping finger].” It was entirely immaterial whether the defendant cut the man he assaulted “twice” as stated by the presiding judge, or only once, since the number of cuts inflicted by the defendant could not affect the criminality of the act under the facts disclosed by the record. The important fact of the cutting referred to by the judge was not in dispute, and under these circumstances, and notwithstanding the general plea of not guilty interposed by the defendant, it can not be said that this statement hy the court was harmful to the accused, and should therefore require the grant of a new trial.

5. Since the uncontradicted evidence showed that the defendant cut the prosecutor, and the accused, in his statement to the jury, freely admitted the cutting, though claiming justification therefor, the fact that the presiding judge, while the prosecutor, was on the stand as a witness, said to him, “ Come around here and let me see the place he cut you,” will not require the grant of a new trial on the ground that it amounted to an expression of opinion by the presiding judge that the prosecutor had been in fact cut by the defendant.

6. The verdict was authorized by the evidence and the statement of the accused; and there was no such error in the trial of the ease as, in the interest of a fair and impartial administration of the law, requires the grant of a new trial; and the trial judge properly overruled the motion therefor.

Judgment affirmed.

Russell, O. J., absent.