Demonia v. State , 69 Ga. App. 862 ( 1943 )

Section 81-1104 of the Code makes it reversible error for a trial judge to intimate or express in his charge to the jury his opinion as to what has or has not been proved. Hence, on the trial of a person accused of distilling spirituous and alcoholic liquors, it was reversible error to charge, "Gentlemen of the Jury, one of the witnesses testified in this case to having worked at this still for this defendant, and that, under the law, constitutes what is known as an accomplice." This was an expression of an opinion that the witness referred to was an accomplice of the defendant. Therefore, a new trial is required.

DECIDED SEPTEMBER 15, 1943. This is the third appearance of this case in this Court. See Demonia v. State, 66 Ga. App. 114 (17 S.E.2d, 204); s. c. 68 Ga. App. 200 (22 S.E.2d 520). The defendant was charged with distilling or manufacturing and making alcoholic liquors, spirituous liquors, whisky and rum. The plea of not guilty filed by the defendant "is a contention on his part as to every material and essential fact necessary to establish his guilt and implies a denial of every such fact." SouthernExpress Co. v. State, 1 Ga. App. 700 (5) (58 S.E. 67). His statement to the jury was in effect that he had inadvertently just come up to where the still was in operation when the officers appeared; that he knew nothing about it and had nothing to do with it. Thus an issue was made as to whether the witness, who was referred to in that portion of the charge excepted to, was an accomplice. Section 81-1104 of the Code forbids a trial judge to "express or intimate his opinion as to what has or has not been proved," and declares that should he violate this section, the reversal of the case is mandatory. The court charged the jury: "Gentlemen of the Jury, one of the witnesses testified in this case to having worked at this still for this defendant, and that, under the law, constitutes what is known as an accomplice." This was an expression or intimation of an opinion not only that the witness was an accomplice but that he was an accomplice of the defendant. Following the ruling made in Davis v. State, 91 Ga. 167 (17 S.E. 292);Holtzendorff v. De Renne, 129 Ga. 226 (58 S.E. 710);Suddeth v. State, 112 Ga. 407, 409 (37 S.E. 747); andCook v. State, 40 Ga. App. 125 (149 S.E. 79), the charge now under consideration was erroneous, and a new trial must be granted.

Judgment reversed. Broyles, C. J., and Gardner, J., concur.