Allen v. State

21 S.E.2d 73, 194 Ga. 178, 1942 Ga. LEXIS 545

• Court: Supreme Court of Georgia
• Decided: June 18, 1942
• Docket: 14011.
• Status: Published

Opinions

Atkinson, Presiding Justice.

1. The first question assumes a violation of the Code, § 81-1104, and therefore that the expression of opinion does not relate to some fact not in dispute, or admitted by the defendant himself to be true, and that accordingly it was erroneous for the judge during the progress of the case but not in the charge to the jury, to express or intimate his opinion as to what has or has not been proved. On such assumption it is inquired, is such violation so erroneous that it is mandatory on the reviewing court to reverse the judgment without regard to the question of injury to the complaining party, merely because of such error? In the stated circumstances the law conclusively presumes injury on account of the error, and the mandatory provisions of the stated Code section require reversal of the judgment of the trial court on proper assignment of error. An answer in the affirmative to the first question results from application of principles stated in the second division of this opinion. The same result was reached in Smoot v. State, 146 Ga. 76, 80 (90 S. E. 715), but the complaint there was of improper argument by the solicitor-general, to which the cited Code section does not apply. In the answer to the first question Eeid, C. J., Atkinson, P. J., and Jenkins, J., concur. Bell, J., concurs in part, and dissents in part. Grice and Duckworth, JJ., concur specially.

2. Where during the progress of the trial the judge by interrogation of a witness for the State violates the provisions of the Code, § -81-1104, which inhibits the judge from expressing or intimating an opinion as to what has been proved or as to the guilt of the accused, and the defendant passively sits by and takes his chances of acquittal, without having made a motion for a mistrial or any other motion at the time of the commission of the error, he may as a matter of procedure nevertheless complain of the error for the first time in a motion for a new trial. '

The second question, which will now be dealt with, assumes that the trial “judge” intimated or expressed an opinion as to what had been proved or as to guilt of the accused, and thereby violated the Code, § 81-1104, which declares: “It is error for any judge of a superior court, in any case, whether civil or criminal or in equity, 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 should any judge of said court violate the provisions of this section, such violation shall be held by the Supreme Court or Court of Appeals to be error, and the decision in such case reversed, and a new trial granted in the court below, with such directions as the said Supreme Court or Court of Appeals may lawfully give.” It is inquired, “as a matter of procedure,” if the resulting error may be complained of for the “first time in the motion for a new trial,” it appearing that there had been “no antecedent” motion challenging the error. The Court of Appeals having certified that decision of the question is necessary to a proper decision of the ease, this court will not examine the record to determine whether a decision of the question is necessary to a proper determination of the ease (Harvey v. Thompson, 128 Ga. 147, 57 S. E. 104, 9 L. R. A. (N. S.) 765, 119 Am. St. R. 373; Happy Valley Farms Inc. v. Wilson, 192 Ga. 830, 832, 16 S. E. 2d, 720), but will proceed to answer the question expressed by its terms, Jackson v. Anglin, 193 Ga. 737 (19 S. E. 2d, 914).

The case of Potter v. State, 117 Ga. 693 (45 S. E. 37), did not involve a question certified by the Court of Appeals, but did involve a question of “procedure,” as disclosed by the record in the case, as to which the Supreme Court had jurisdiction. In that case a witness for the State, having changed his testimony as to a particular fact, the following colloquy occurred between the judge and the witness: “The court: ‘You said just now that you made one statement, and then you said you would change that statement?5 Witness: ‘Yes, sir.5 The court: ‘Did you tell them that because you were satisfied that you had made a mistake?5 Witness: ‘Yes, sir; I was satisfied that I had made a mistake.5 His honor thereupon remarked: ‘You did exactly right, then, to change your statement.5 To the correctness of this observation the witness gave his assent by saying, ‘Yes, sir.5 55 No motion to declare a mistrial or other motion was made at the time, but the defendant sat by passively and for the first time complained of the remarks of the court in his motion for a new trial. Dealing with this phase of the case the Supreme Court reversed the judgment refusing a new trial. In the opinion it was said: “It is earnestly contended in behalf of the plaintiff in error that the above-quoted remark by the presiding judge was ‘equivalent to the expression of his opinion that the witness had spoken the truth. In other words, from the use of this commendatory language the jury might well5 have received the impression, and probably did in fact ‘infer, that the court at least believed that the witness was honestly mistaken.5 There is much' force in this argument. While we are satisfied that his honor did not mean to intimate that the witness had acted conscientiously and uprightly in testifying on the trial what he believed was the real truth, and had done exactly right in not adhering to a previous statement which he had made under an honest mistake of fact, yet how can we arbitrarily assume that the jury understood his honor as intending to say merely that if, in point of fact, the witness had made such a mistake and had later become convinced that this was so, then he did exactly right to change his statement so as to make it conform to what he believed was the truth ? If it be once conceded that the jury may not have so understood his honor, or that his remark was calculated to convey to them the impression that he was satisfied of the good faith of the witness and approved the course he had pursued, then the making of this remark must be regarded as not only unfortunate, but as affording cause for ordering a new trial. Our Civil Code, § 4334 [Code of 1933, § 81-1104], expressly declares that a trial judge shall not in any case, civil or criminal, ‘during its progress or in his charge to the jury, . . express or intimate his opinion as to what has or has not been proved ;5 and this section also contains the impera tive mandate that when it shall appear, in any ease, that there has been a violation of its provisions in this regard, ‘such violation shall be' held by the Supreme Court to be error, and the decision in such case reversed, and a new trial granted.’ So it has been held that a disregard of this section on the part of a trial judge ‘renders the grant of a new trial imperative, without reference to the correctness of the verdict.’ Sanders v. Nicolson, 101 Ga. 739 [28 S. E. 976]. In an early case, that of Pound v. State, 43 Ga. 90, this court ruled that the judge of the trial court committed grave error in complimenting a witness for the prosecution, since to do so was ‘to give an improper potency to the influence of his testimony;’ and in Florida R. Co. v. Lucas, 110 Ga. 121 [35 S. E. 283], it was held to be a violation of the provisions of the above-cited section of the Code to ‘allude to the testimony of a particular witness in such a manner as to apparently give it judicial indorsement and approval.’ After mature deliberation, we have reached the conclusion that the remark of the judge of which complaint is made in the present case was calculated to convey to the jury the idea that he accepted as true the explanation offered by the witness under examination concerning contradictory statements previously made by him, and gave approval to his apparently conscientious retraction of such statements when, as he testified, he became convinced he was mistaken as to what really occurred. See Alexander v. State, 114 Ga. 266 [40 S. E. 231]. On the argument before us, counsel for the State suggested that as the accused did not present a motion for a mistrial because of the supposed prejudicial effect of the judge’s comment to this witness, but remained silent during the further progress of the trial and took his chances of an acquittal, he could not after verdict with good grace insist that he was entitled to a new trial on that ground. In this connection, our attention was directed to a line of decisions by this court, to the effect that where a solicitor-general is guilty of improper conduct calculated to operate to the prejudice of the accused, the latter is called upon to elect whether he will exercise his right to demand that the trial be stopped then and there, or consent to its proceeding upon the judge’s taking all necessary steps to remove any hurtful influence upon the jury by cautioning them not to pay any regard to such improper conduct on the part of counsel for the State, etc., etc. We recognize these decisions to be sound, but -are of the opinion that they are not controlling in the present case. A solicitor-general takes the role of an advocate, and experience has demonstrated that he may, at times, in the heat of discussion say things which are improper, or be led by his zeal as a partisan into adopting measures to which resort should never be made. When this ■occurs, the law gives to the accused the option of either moving for a mistrial, and thereby securing a trial before another jury, or taking his chances of acquittal as thus more or less impaired. When, however, the presiding judge violates the duty of passive noncommittal imposed upon him by the Civil Code, § 4334 [Code of 1933, § 81-1104], the accused is not, and should not be, put to such an election. There is connected with the court no one of higher authority to bestow upon the judge the frown of disapproval or to caution the jury not to allow his improper conduct to influence them. He might, it is true, if called on to do so, undertake to remove its sting by explaining to the jury that he did not intend to express any opinion of his own as to what had been proved, and was not to be understood as even intimating what his opinion in regard thereto really was. But he could go no further. He would not be at liberty to add that, in point of fact, he did not entertain the views his ill-chosen language would seem to indicate; for to thus attempt to correct and cure his error as against the accused would involve the judge into the predicament of committing a fresh error, as against the State, of precisely the same nature. So all he could properly do would be to disclaim any intention of expressing or intimating an opinion, leaving the jury free to draw their own conclusions as to whether or not he had, as matter of fact, actually committed himself by unwittingly betraying his views to them. The law gives to one accused of crime the absolute guarantee of a new trial in the event he is deprived of a fair and impartial trial by reason of the fact that the judge before whom he is convicted commits the grave error which the above-mentioned section of our Code declares can in no case be overlooked or forgiven. It is not within our province to change the law.” See also Ficken v. Atlanta, 114 Ga. 970 (41 S. E. 58).

The above-quoted decision concurred in by all the Justices is binding as a precedent, and controlling on the question now propounded by the Court of Appeals. It properly distinguishes violation of the Code, § 81-1104, by the judge, which requires the grant of a new trial, from improper remarks by tbe solicitor-general and similar cases, in which the defendant may not sit by passively, taking the chance of an acquittal, and complain for the first time in a motion for a new trial. On the basis of the statute embodied in the Code section, it rules that where the judge violates the statute by expressing or intimating an opinion as to what has or has not been proved or as to guilt of the accused, the defendant may take his chance of acquittal, and for the first time complain of the error in a motion for a new trial; but that under a line of decisions he can not do so on the basis of misconduct of the solicitor-general or others than the judge. It might have been better to state expressly that one reason for this difference is that the mandatory provision of the statute applies to the judge and requires the grant of a new trial, but does not apply to the solicitor-general or others than the judge. Examples of the latter class of cases include Brooks v. State, 183 Ga. 466 (188 S. E. 711), and cit., but, as brought out in the above-quoted opinion, they stand on a different footing from violation of the statute by the judge. The cases of Perdue v. State, 135 Ga. 277 (69 S. E. 184), Kay v. Benson, 152 Ga. 185 (108 S. E. 779), Herndon v. State, 178 Ga. 832 (6) (174 S. E. 597), and Armstrong v. State, 181 Ga. 538 (2) (183 S. E. 67), did not involve expression of opinion by the judge as to what had or had not been proved or as to the guilt of the accused. The decisions in Moore v. McAfee, 151 Ga. 270 (11) (106 S. E. 274), and Barnett v. Strain, 151 Ga. 553 (5) (107 S. E. 530), involving expression of opinion by the judge as to what had or had not been proved, overlooked the case of Potter v. State, 117 Ga. 693 (supra), and must yield to that as an older decision binding as a precedent. Code, § 6-1611; Killingsworth v. Killingsworth, 148 Ga. 590 (2) (97 S. E. 539); Pierce Trading Co. v. Blackshear, 182 Ga. 649 (186 S. E. 721). It should not be held that the Justices rendering these decisions did not overlook the Potter case but purposely refrained from mentioning it because they regarded it as unsound. If the Justices had not overlooked that case, their duty was to follow it, or, if they questioned its soundness, to call for its review and overrule it. If it should be contended that where the judge violates the Code section otherwise than in his charge to the jury, as a matter of procedure the aggrieved party must at his peril make some motion at the time for correction of the error, the answer is that the statute which prescribes procedure does not so provide. As brought out in the Potter case, the statute provides that when such error is committed by the judge in any ease during its progress, or in his charge to the jury, such violation of the statute shall be held error by the reviewing court, and the decision in such case reversed, and a new trial granted in the court below.

This mandatory provision of the statute, like an established fact, must be respected. It can not be avoided by resort to supposed procedural circumvention. The statute provides its own procedure. It contemplates correction of error by motion for a new trial, as provided for in other sections of the Code, and on the basis of such error declares unconditionally that a “new trial” (not a “mistrial” which he may not want) “shall be granted in the court below.” If a change of such procedure would be wise, that would be a matter to be dealt with by the legislature, and not by the courts, the powers of which branches of government “shall forever remain separate and distinct.” Code, § 2-123. The case is not analogous to requirement of procedure for declaring void legislative acts in violation of the constitution, as providéd in the Code, § 2-402. That section does not purport to deal with the question of procedure. In the instant case the injured party commits no act to es-top him. He makes no waiver. He is in no sense responsible for what the judge may say, and should not be cut off from complaining in a motion for a new trial of the expression of opinion by the judge which had its injurious effect at the instant the expression was made. The burden should not be imposed upon an attorney of carrying on a controversial running fire with the trial judge, respecting the judge’s own conduct during the progress of the trial. The cases of Howell v. State, 162 Ga. 14 (5) (134 S. E. 59), Tanner v. State, 163 Ga. 121 (9) (135 S. E. 917), Reed v. State, 163 Ga. 206 (2), 216 (135 S. E. 748), and Daniels v. State, 167 Ga. 54 (3-c), (145 S. E. 45), involved remarks by the judge, not in his charge, but in the presence of the jury, that were held not to require the grant of a new trial. In those decisions the correctness of the quoted ruling from Potter v. State, supra, was not challenged, but the ruling was based on insufficiency of the re-1, marks by the judge to show violation of the statute. No such . ruling would be appropriate in the instant case, where the question propounded by the Court of Appeals assumes violation of the statute by the judge and relates only to “procedure,” where there is such violation. It is inapt to suggest that a party to a case who acts through his attorney at law will “lie in ambush” for the judge and the opposite party, if after the judge has violated the Code, § 81-1104, by expressing his opinion in relation to controverted matters as to what has or has not been proved, or as to the guilt of the accused, such party fails to make complaint of the injury thereby inflicted, and for the first time makes complaint in a motion for a new trial. Such aggrieved party has a right to go on with the trial and obtain a favorable verdict if he can, and in doing so he does not “lie in ambush” for any one. The violation of the statute is the judge’s own unprovoked error of which he must know. It has done its injury at the instant it is committed. If such an aspersion could be applied either to judge or attornej1', it would seem more fitting to apply it to the judge, who violates the statute and sits by, taking the chance of complaint being made, and, if not made, refusing a motion for a new trial, because complaint was not made. Such action by the judge would substantially import into the statute a condition that the mandatory provision of that law does not authorize. It will be observed that the authorities in this State antedating the Potter case and those from the United States Supreme Court as cited in the opinion prepared by Justice Bell do not regard the specific provisions of the Code, § 81-1104. The terms of that statute are mandatorj', and leave no room for choice at the hands of the court. To avoid its terms resort may not be had to waiver or to principle unaffected by statute as could be done in a case where no specific mandate or direction is given by statute to the court to grant a new trial on account of such error. Much ingenious and scintillating discussion can not get around the proposition, that where the statute is so violated by the judge a new trial must be granted. The expression “lie in ambush” was used in Young v. State, 65 Ga. 525 (3), which did not involve violation of the statute by the judge, but related to improper remarks made by an attorney of the opposing party. The statute shows the route to justice that was contemplated by the legislature. That can be changed by legislative action, but not by the court.

Upon response to rule nisi issued by the court (Code, § 6-1611) to show cause why the Potter decision supra, should not be reviewed and overruled, the same has been considered, and the court declines to overrule it. Reid, C. J., Atkinson, P. J., and Jenkins, J., favor its reaffirmance; while Bell, Grice, and Duckworth, JJ., are of the opinion that it should be overruled.

The second question propounded by the Court of Appeals is answered in the affirmative. Reid, C. J., Atkinson, P. J., and Jenkins, J., concur. Gric§, J., concurs specially. Bell and Duck-worth, JJ. dissent.

3. The third question is by its terms dependent upon the second question being answered in the negative. As that question is answered in the affirmative, no answer is required to the third question propounded by the Court of Appeals.

4. The fourth question is by its terms dependent upon the second and third questions being answered in the negative. As neither of these questions is answered in the negative, no answer to the fourth question is required.

5. 6. On consideration of the fifth and sixth questions propounded by the Court of Appeals, this court being evenly divided, Reid, C. J., Atkinson, P. J,, and Jenkins, J., being of the opinion that under the facts indicated in these questions the complainant would not be estopped, but that the motion for new trial should be sustained, and Bell, Grice, and Duckworth, JJ., being of the contrary opinion, these questions are returned without answer.