Bland v. State , 211 Ga. 178 ( 1954 )

Head, Justice,

dissenting. In Thompson v. State, 203 Ga. 416, in an opinion prepared for this court by the writer, concurred in by six Justices, with one Justice not participating, it was said in part that, where a question is propounded by a juror that involves the functions of a separate and distinct branch of the government, the jury should be told that such matters can not be the subject of any instruction by the court. I adhere to the rulings made in the Thompson case, supra, and I believe that the rulings there announced demand that the judgment in the present case be reversed. .

The trial judge in the order denying the amended motion for new trial stated: “The court then read from section IV,.page 3, of a printed pamphlet entitled 'State Board of Pardons and Paroles, Policies, Rules and Regulations’ promulgated in 1952 and furnished this court by the State Board.” Neither the Constitution of 1945, art. V, sec. I, par. XI (Code, Ann., § 2-3011), creating a State Board of Pardons and Paroles, nor the act of the General Assembly pursuant to the Constitution (Ga. L. 1943, pp. 185-195), purports to confer upon the State Board of Pardons and Paroles any power to promulgate rules and regulations having the force and effect of law. See Glustrom v. State, 206 Ga. 734 (58 S. E. 2d 534). In the present case the trial judge charged the jury from a pamphlet that was not introduced in evidence, and about which there was no evidence before the court, in violation of the well-established rule of law that it is error for the trial judge to charge on any principle that is not supported by evidence. Paschal v. Davis, 3 Ga. 256; Harrison v. Thompson, 9 Ga. 310; Byrne v. Doughty & Beall, 13 Ga. 46; McBain v. Smith, 13 Ga. 315; Henderson v. Stiles, 14 Ga. 135; Gray v. Cole, 20 Ga. 203; Hindsman v. Worthen, 22 Ga. 47; Daniel v. Johnson, 29 Ga. 207; Patten v. Newell, 30 Ga. 271; McLean v. Clark, 47 Ga. 24, 25; Mobley v. Breed, 48 Ga. 44; Bank of Washington v. Ellington, 66 Ga. 280; Robertson v. Wilder & Co., 69 Ga. 340, 341; Savannah, Florida & Western Ry. v. Stewart, 71 Ga. 427; Bland v. State, 210 Ga. 100, 107, and cases cited.

Courts do not take judicial notice of the laws of another State. If they are to be relied upon, they must be before the court in evidence. Champion v. Wilson & Co., 64 Ga. 184; Craven v. Bates, Kingsbery & Co., 96 Ga. 78 (23 S. E. 202); Alropa Corp. v. Pomerance, 190 Ga. 1 (8 S. E. 2d 62). Nor do courts take judicial notice of municipal ordinances. Mayson v. City of Atlanta, 77 Ga. 662, 663 (5); Western & Atlantic R. Co. v. Young, 81 Ga. 397 (7 S. E. 912, 12 Am. St. R. 320); Griffin v. State, 183 Ga. 775, 779 (190 S. E. 2). Nor can courts take judicial notice of the regulations of the Department of Revenue. Bernstein v. Peters, 69 Ga. App. 525, 532 (26 S. E. 2d 192). In Glaze v. Bogle, 105 Ga. 295, 298 (31 S. E. 169), this court laid down the rule: “In the trial of one case the court can no more take judicial notice of the record in another case in the same court, without its formal introduction in evidence, than if it were a record in another court; much less can this court take notice of the existence of a record not introduced in evidence in the court below.” In Delinski v. Dunn, 209 Ga. 402 (73 S. E. 2d 171), this court, in a full-bench decision prepared for the court by Mr. Justice Hawkins, laid down the rule that, on the application of a prisoner to be discharged on the theory that his term had expired by reason of “good time and extra good time,” the court should have before it, introduced in evidence, the rules and regulations of the State Board of Corrections.

An examination of the record in this case shows that nowhere in the recharge to the jury did the trial judge read any provision of the Constitution creating a Board of Pardons and Paroles, nor did the trial judge read from the act of the General Assembly pursuant to the constitutional provision. The purported rules and regulations of the State Board of Pardons and Paroles were not in evidence, were not established in any manner recognized by the law, and could not have (under our rules of law) any probative value in a court of justice. The trial judge did not, therefore, charge the law.

After the trial judge had read from the purported rules and regulations of the State Board of Pardons and Paroles, the following occurred:

“The Foreman: One more question, sir. Does the judge have to recommend or go along with the Parole Board in the State of Georgia; as I understand, the judge has no control over it. The Court: No, I don’t even know when they consider it. The Foreman: Does the prosecuting attorney have anything to do with it? The Court: He doesn’t know about it either.”

The answers of the trial judge to the questions propounded did not refer to any rule of law or to any purported rule and regulation of the State Board of Pardons and Paroles, and amounted to nothing more than the statement of an opinion by the trial judge as to the method and manner of procedure by the State Board of Pardons and Paroles. It has long been the rule in this State that it is reversible error for the judge in his charge to the jury to express or intimate an opinion as to what has or has not been proved. Code § 81-1104. It has been said by this court that, even though the results of the trial show that substantial justice has been done, a new trial must, nonetheless, be granted. Phillips v. Williams, 39 Ga. 597; Bohler v. Owens, 60 Ga. 185, 186 (3). See also Regular v. State, 58 Ga. 264; Lovejoy v. State, 82 Ga. 87 (1a) (8 S. E. 66); McVicker v. Conkle, 96 Ga. 584 (24 S. E. 23).

I can not agree with my distinguished associates as to the effect of the ruling of this court in Gravett v. State, 74 Ga. 191, 192 (2). In the Gravett case the prisoner and his counsel were in court when the recharge was given. In that case the court held: “This charge was as favorable to the defendant as to the State, and did cover the theory, both of the defense and the prosecution, as fully as did the original charge.” The ruling in the Gravett case was simply to the effect that, if the defendant had wanted a fuller charge on the recharge by the court, he should have requested it, and not having done so, he could not complain of a correct charge because some other principle was not charged. See O’Shields v. State, 55 Ga. 696, 697 (4). This has always been the rule in Georgia both as to the main charge and on a recharge to the jury. In the Gravett case the prisoner waived nothing more than the right to request a fuller explanation than the one given, which this court said was full and fair to both the State and the accused.

Under Code § 70-207, a new trial should be granted in all cases where the presiding judge may deliver an erroneous charge to the jury against the applicant on a material point. While it is the practice in some jurisdictions to require an exception to the charge of the court to be made prior to the motion for new trial, this is not the practice in this State. There is no more reason to require that a defendant should except to a recharge of the court at the time it is made than that he should except to the main charge of the court at the time it is made. In my view of the Gravett case (which has never been cited or followed) it is not authority for a holding that the defendant acquiesces in an erroneous recharge because he does not make an exception at the time it is given, and I have found no authority in this State supporting such a holding. Generally, in the absence of an express waiver, the prisoner is to be considered as standing on all of his legal rights and waiving none of them. State of Georgia v. Swearingen, 12 Ga. 23, 29; Hoye v. State, 39 Ga. 718 (6); Martin v. State, 51 Ga. 567.

The erroneous recharge to the jury in the present case, and the statements of opinion contained therein, denied to the prisoner a recommendation of mercy. This court is committed to the proposition that there is never a case wherein the evidence demands a verdict of guilty without a recommendation to mercy. Glover v. State, 128 Ga. 1, 7 (57 S. E. 101); Barfield v. State, 179 Ga. 293 (175 S. E. 582); Jones v. State, 207 Ga. 379, 380 (3) (62 S. E. 2d 187).

If there be those who are impatient with the law’s delay and the fact that the prisoner has not sooner been brought to justice, I reply in the words of Chief Justice Bleckley in Cochran v. State, 62 Ga. 731, 732, as follows: “Those who are impatient with the forms of law ought to reflect that it is through form that all organization is reached. Matter without form is chaos; power without form is anarchy. The state, were it to disregard forms, would not be a government, but a mob. Its action would not be administration, but violence. The public authority has a formal embodiment in the state, and when it moves, it moves as it has said by its laws it will move. It proceeds orderly, and according to pre-established regulations. The state, though sovereign, cannot act upon the citizen in a different manner from that which the laws have ordained. It cannot inflict capital punishment without first trying the prisoner according to law. There is no dispensing power. Courts have none. Courts are bound by the law no less than the prisoner at the bar.”

For the reasons stated, it is my considered opinion that justice and the law require the grant of a new trial.

I am authorized to say that Presiding Justice Wyatt and Justice Mobley concur in this dissent.