Chapman v. State

Stephens, J.,

dissenting.

This was a conviction for simple larceny, the accusation alleging that the property stolen was one bushel of corn in the shuck, of the value of $2, and the property of O. P. Aiken. The evidence of Mr. Aiken was: “It was my corn. It was my corn until it was made and gathered. Part of the corn was Mr. Smith’s. . . He was to get part of the crop. He was to get one half of it.” 'Hpon a ruling upon a. motion made by defendant’s counsel the trial judge, in the presence of the jury, remarked, “I will have to rule this is Mr. Aiken’s corn, under this testimony.”

Section 1058 of the Penal Code of 1910, codified from what is commonly called the “dumb act,” says: “It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such ease reversed, and a new trial granted, with such directions as the Supreme Court may lawfully give.” This applies to trials in the city court of Jefferson (Acts 1903, p. 138). It is made mandatory on the Court of Appeals to grant a new trial when the trial judge expressed his opinion on the facts. This rule is not altered merely because the fact stated as proved by the trial judge stands uncontradicted by testimony. The truth or falsity of the. .alleged fact is put in issue by the defendant’s plea of-not guilty, which plea is a denial of each and every allegation in the indictment against him. He is presumed to be innocent, and this presumption remains with him throughout the trial and until after the rendition of a verdict against him. His plea of “not guilty” and this presumption of innocence continue throughout the entire trial to challenge and deny the case of the State as alleged in the indictment and made in the evidence. Where there is no admission in judicib, the uncontradicted evidence of the State is thus denied and an issue of fact is made.

-It was a violation of this section of the code for the trial, judge to state, in the presence of the jury, that this statement of a witness, uncontradicted by the testimony, was true. He went “outside of the limits of legitimate discussion upon the point presented [and used] such language as to indicate . . actual judicial approval ... of . . part of the testimony.” Realty Co. v. Ellis 4 Ga. App. 403, cited in the majority opinion. In Cooper v. State, 3 Ga. App. 730 (69 S. E. 30), it was held that “A plea of not guilty, by one accused of crime, is an express contention on his part antagonistic to every fact necessary to be proved by the State in order to establish his guilt; and unless the accused admits one or more of the facts which it devolves upon the State to prove, such fact must be' established by evidence. To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is reversible error.” Also, in the case of Southern Express Co. v. State, 1 Ga. App. 700 (5) (58 S. E. 67), the court said: “To assume in a criminal case that the testimony for the State is the truth, though such testimony be not contradicted by evidence for the defendant, and to charge the jury that such testimony is the truth-and that there is no contention to the contrary, is violative of section 4334 of the Civil Code [of 1895, supra], and" demands a new trial. 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.”

Although the evidence demands a verdict of guilty, the law commands that it be set, aside. The trial judge should have kept dumb as the statute requires. It was not at all essential to his ruling upon the motion made by counsel for defendant for him to express himself on the facts as he did. We are enjoined in mandatory terms to set this conviction aside. Mandatory statutes must be obeyed, not evaded.