Allen v. State , 67 Ga. App. 607 ( 1942 )

1. Where a judge, in any case, civil or criminal, during the progress of the trial or in his charge to the jury, expresses or intimates his opinion as to what has or has not been proved, or as to the guilt of the accused, in violation of Code § 81-1104, such error may be taken advantage of for the first time in a motion for new trial. It is not necessary for the aggrieved party to allege in the motion for new trial that any sort of motion was made at the time of the alleged error, or to allege injury resulting from such violation of the statute. "The law conclusively presumes injury on account of the error, and the mandatory provisions of the Code section require reversal of the judgment of the trial court on proper assignment of error." See Allen v. State, 194 Ga. 178 (21 S.E.2d 73).

2. The court erred in not sustaining ground 1 of the amended motion for new trial.

DECIDED JULY 15, 1942. The defendant was convicted of voluntary manslaughter. He assigns error on the overruling of his motion for new trial. The motion contains two special grounds.

1. The first headnote needs no elaboration.

2. (a) Ground 2 complains because the court failed to charge the law of circumstantial evidence. The record reveals that the verdict was not dependent on circumstantial evidence alone. There is no merit in this ground.

(b) Ground 1 is as follows: "Because, during the progress of said trial, the trial judge erred in this, that he did intimate or express an opinion to the jury as to what had been proved, as follows, to wit: in ruling on the testimony of Willie Chip Sr., who was sworn for the State and testified, the trial judge made the following ruling, to wit: ``Exclude all the testimony of this witness up to the time somebody tried to pacify him on the porch, except the fact that Cuthbert came there and didn't cause any disturbance.' The portion of said ruling which movant complains as being an expression of opinion detrimental to movant's rights as to what had been proved, being as follows: ``Except the fact that Cuthbert came there and didn't cause any disturbance.'"

After giving careful study to the evidence in the light of defendant's contention, we come to the conclusion that the judge intimated and expressed an opinion in violation of Code § 81-1104. The defendant raised this question for the first time in his motion for new trial. In overruling this ground of the motion the court stated: "In the first ground of his amendment movant contends that the court committed error in expressing an opinion as to what had been proven, when the court in excluding certain testimony offered made a certain statement. This does not show error for it was necessary and proper that the court give his reasons for the exclusion or nonexclusion of certain evidence. Furthermore, movant does not contend or show that he made a motion for a mistrial then and was overruled by the court. Our reviewing courts have many times decided that prejudicial statements made by a judge in the hearing of the jury are not grounds for a new trial unless a motion for a mistrial was then and there made." This controversial question being thus raised in this record the Court of Appeals deemed it necessary to a proper decision of the case to make certain certifications to the Supreme Court for instructions. For the full import of the questions certified to the Supreme Court and the answers thereto see Allen v. State, supra.

In view of what has been said hereinbefore the case is reversed because of the errors assigned in ground 1 of the amended motion treated in division 2 (b) of this opinion. Since the case is to be tried again we do not pass on the general grounds.

Judgment reversed. MacIntyre, J., concurs.