Thompson v. State , 166 Ga. 512 ( 1928 )

Russell, C. J.,

dissenting. It may be that none of the grounds of the motion for new trial dealt with in headnotes one to eight require the grant of a new trial, though I can not approve all of the rulings made. However, I am of the opinion that the court should not have admitted the evidence dealt with in the ninth 'headnoie, and that the admission of this testimony was obliged to ¡be of the ‘gravest prejudicial consequence in fixing the rights of the ¡accused ¡at the hands of the jury. 'The Latin words “res gestae,'” translated literally, mean “things done,” and in criminal eases have reference to occurrences contemporaneous with an alleged erime, or so nearly so as to be free from device or afterthought. The statement of the husband to his wife, as explained by her evidence, does not come within .this classification. The husband did not see anj one, speak to any one, or hear any one outside his bedroom; and when he remarked to his wife that it was the same white man and negro who were here Wednesday night, it was mere guesswork and his utterance the opinionative expression of a retrospective imaginary picture which might or might not have been the subject of verification. I also dissent from the ruling in the tenth and twelfth headnotes. As to the latter, it is my opinion that one accused of crime is entitled to have the precise language of section 1010 of the Penal Code given to the jury; and certainly, in the absence of such an instruction, the effect of the plain language of the Code should not be minimized by differentiation between every possible theory and every reasonable theory in the manner in which the instruction was given in the present instance. It will be an evil day in Georgia when juries do not listen with profound respect and perfect confidence to the utterances of the presiding judge. So our law wisely forbids even an intimation as to what has been proved or omitted to be proved in the trial of a case. The use of the expression, “in so far as the State relies for conviction in this case upon circumstantial evidence,” in connection with the instruction as to circumstantial evidence, can suggest no other inference than that there was direct evidence which each juror would think for himself he had overlooked or forgotten; and yet as a matter of fact there is no direct evidence of the guilt of the accused in the entire record.