Fish, C. J.
(After making the foregoing statement of facts.)
1. The Civil Code, §4334, declares that a new trial shall be granted where the judge, during the progress of the case,, or in his charge to the jury, expresses or intimates his opinion as to what has or has not been proved, or as to the guilt of the accused. That the judge in the present case, in proceeding to sentence the accused, expressed an opinion that he had taken the life of the deceased, which the accused denied, and that he was guilty, there can be no doubt. Whether the case was legally in progress at the time of the expression of such opinion, and whether the right to poll the jury then existed, are questions we deem it unnecessary to decide, under the view we take of the case. His honor, the trial judge, at the instance of counsel for the accused, recognized that his right to poll the jury still existed, by permitting the poll to be taken, and that the case was not terminated, but was still in progress, by recharging the jury and directing them to return to their room for the purpose of making a verdict. So, dealing with the case as the judge considered it, we have, after mature deliberation, reached the conclusion that the expression of opinion by the judge, under the circumstances, is not cause for a new trial. The reason for our conclusion is, that when the judge inquired of the accused and his counsel if they had aught to say why -the sentence of the court should not he pronounced upon the accused in accordance with the verdict, the accused and his counsel replied they had nothing to say. Clearly, we think, by this response, the judge was induced to believe that the right to poll the jury would not be demanded. He was led to believe that the trial had terminated. And the judge, thus misled by the accused and his counsel, was naturally put off his guard and expressed an opinion, when otherwise he would not have done so. The situation which confronted the judge, the parties to the case, and the counsel engaged therein, when the request of the accused that the jury he polled was made, was one for which the accused and his counsel, and not the judge, were responsible. After the first verdict had been received by the clerk of the court from the foreman of the jury and publicly read in open court, and the judge had asked the accused and his counsel if they had anything to say why the sentence of the court should not'be imposed upon the prisoner, and they had replied, “Nothing,” the judge had the right to assume that all that remained to be done to terminate the case, [872] so far as that trial was concerned, was to impose the sentence of the law upon the prisoner, in accordance with the verdict of the jury. He had the right, under such circumstances, to regard the connection of the jury with the case as being at an end, and was, therefore, under no duty to the accused to carefully refrain from expressing or intimating an opinion as to the facts disclosed by the evidence or as to the guilt of the accused. If the judge erred, it was because he was mistaken in believing that the connection of the jury with the case was at an end, and for this error the accused and his counsel were responsible; and the accused can not take advantage of an error which was the result of what he himself did.
Notwithstanding the broad and mandatory language of the Civil Code, §4334, there are exceptions to the imperative general rule there laid down. For instance, it has been held not to be a violation of the provisions of that section for the trial judge, upon a motion for a nonsuit, to express his opinion, in the presence of the jury, as to the sufficiency of the evidence to support the action. Perry v. Butt, 14 Ga. 699. So, when "objection is made to evidence offered, the judge has a right, if he deems proper, to give the reasons for his decision on the objections; and such reasons so given, if pertinent to the objections made, do not constitute such an expression of opinion as to violate the code section above cited.” Oliveros v. State, 120 Ga. 237, 242, and cit. These decisions were followed in Central R. Co. v. Harper, ante, 836, where it was held: "In ruling on the motion to dismiss because of the mental incapacity of the plaintiff to sue without a next friend or guardian, the remarks of the judge, assigning his reason for the ruling and the reference of the issue thus raised to the jury, were neither expressions of opinion upon the facts nor upon the credibility of the plaintiff who had testified as a witness.” If an expression of opinion by the trial judge as to what has or has not been proved does not require the grant of a new trial under the circumstances in the cases cited, we think it very clear that under the circumstances of the present case the expression by the judge of his opinion as to the guilt of'the accused was not cause for a new trial.
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Fish, C. J.
(After making the foregoing statement of facts.)
1. The Civil Code, §4334, declares that a new trial shall be granted where the judge, during the progress of the case,, or in his charge to the jury, expresses or intimates his opinion as to what has or has not been proved, or as to the guilt of the accused. That the judge in the present case, in proceeding to sentence the accused, expressed an opinion that he had taken the life of the deceased, which the accused denied, and that he was guilty, there can be no doubt. Whether the case was legally in progress at the time of the expression of such opinion, and whether the right to poll the jury then existed, are questions we deem it unnecessary to decide, under the view we take of the case. His honor, the trial judge, at the instance of counsel for the accused, recognized that his right to poll the jury still existed, by permitting the poll to be taken, and that the case was not terminated, but was still in progress, by recharging the jury and directing them to return to their room for the purpose of making a verdict. So, dealing with the case as the judge considered it, we have, after mature deliberation, reached the conclusion that the expression of opinion by the judge, under the circumstances, is not cause for a new trial. The reason for our conclusion is, that when the judge inquired of the accused and his counsel if they had aught to say why -the sentence of the court should not he pronounced upon the accused in accordance with the verdict, the accused and his counsel replied they had nothing to say. Clearly, we think, by this response, the judge was induced to believe that the right to poll the jury would not be demanded. He was led to believe that the trial had terminated. And the judge, thus misled by the accused and his counsel, was naturally put off his guard and expressed an opinion, when otherwise he would not have done so. The situation which confronted the judge, the parties to the case, and the counsel engaged therein, when the request of the accused that the jury he polled was made, was one for which the accused and his counsel, and not the judge, were responsible. After the first verdict had been received by the clerk of the court from the foreman of the jury and publicly read in open court, and the judge had asked the accused and his counsel if they had anything to say why the sentence of the court should not'be imposed upon the prisoner, and they had replied, “Nothing,” the judge had the right to assume that all that remained to be done to terminate the case, [872] so far as that trial was concerned, was to impose the sentence of the law upon the prisoner, in accordance with the verdict of the jury. He had the right, under such circumstances, to regard the connection of the jury with the case as being at an end, and was, therefore, under no duty to the accused to carefully refrain from expressing or intimating an opinion as to the facts disclosed by the evidence or as to the guilt of the accused. If the judge erred, it was because he was mistaken in believing that the connection of the jury with the case was at an end, and for this error the accused and his counsel were responsible; and the accused can not take advantage of an error which was the result of what he himself did.
Notwithstanding the broad and mandatory language of the Civil Code, §4334, there are exceptions to the imperative general rule there laid down. For instance, it has been held not to be a violation of the provisions of that section for the trial judge, upon a motion for a nonsuit, to express his opinion, in the presence of the jury, as to the sufficiency of the evidence to support the action. Perry v. Butt, 14 Ga. 699. So, when "objection is made to evidence offered, the judge has a right, if he deems proper, to give the reasons for his decision on the objections; and such reasons so given, if pertinent to the objections made, do not constitute such an expression of opinion as to violate the code section above cited.” Oliveros v. State, 120 Ga. 237, 242, and cit. These decisions were followed in Central R. Co. v. Harper, ante, 836, where it was held: "In ruling on the motion to dismiss because of the mental incapacity of the plaintiff to sue without a next friend or guardian, the remarks of the judge, assigning his reason for the ruling and the reference of the issue thus raised to the jury, were neither expressions of opinion upon the facts nor upon the credibility of the plaintiff who had testified as a witness.” If an expression of opinion by the trial judge as to what has or has not been proved does not require the grant of a new trial under the circumstances in the cases cited, we think it very clear that under the circumstances of the present case the expression by the judge of his opinion as to the guilt of'the accused was not cause for a new trial.
2. It seems that the alleged newly discovered evidence was not, perhaps, merely "impeaching, cumulative, or corroborative,” as the trial judge considered it; but, in our opinion, it was not sufficient to require or cause the grant of a new trial. The homicide occurred [873] in a hall in Nickerson. Moses Green, a witness for the accused, testified on the trial: “At half past eight o’clock Battise [the accused] got some ice cream and said he had to go home, get a nap, and catch the tide. He said he was going to leave the entertainment, get a nap, and catqh the tide. I think he went home. I judge that from what he told me.” In his statement to the jury the accused said: “After a little while Mose Green came by and gave me some cream, and I told him, ‘I think I will go home, I am sick to-night, and get a nap, so that I can catch the tide.’ So I left there. When I walked out and crossed the bridge near Brown’s gate, coming towards there I heard lamentation of men, but I kept on towards home. I did not know anything about the shooting until Estella came home and told me about a lot of shooting down at the hall.” Davis Battise, a brother of the -accused, testified in his behalf as follows: “I saw him [the accused] in the early part of the night after I first got there [the hall at Nickerson]. At the time of the shooting I did not see him in the hall. I did not get there until eleven o’clock; the shooting took place about twelve.” So it seems, from the testimony of Moses Green and the statement of the accused, that the latter left the hall about half past eight o’clock; while, according to the affidavits made by Butler and Lambry, the accused left the hall about half past ten, and according to the testimony of the brother of the accused he was at the hall after eleven o’clock. The accused, in his statement, said he heard no shooting at all; yet Lambry and Butler testify that while they were some two hundred yards away from the hall, they heard firing in that direction, and the accused was then only fifty or seventy-five yards down the road from them. According to the testimony of all the witnesses, there were a number of shots fired at the hall when Ben Wright was killed; and if the accused was within two hundred and fifty or two hundred and seventy-five yards of it, it seems strange that he did not hear it. Moreover Butler and Lam-bry say, in their affidavits, that they lived at Twin Hill, the same settlement where the accused resided; that they knew him; that he passed them at the road, just in front of the hall, and they recognized him. If this were true, why is it that the accused did not see them? for they say that nobody was in the road except themselves and the accused. If the accused saw them, then he must have known that they knew that he was not at the hall at the time of [874] the shooting, and could have had them subpoenaed before the trial, for the purpose of proving the alibi by them which they subsequently to the trial testified to, in support of his motion for a new trial. When all of these circumstances are considered in connection with the affidavit of Paul Wright, we do not, as we have said, think the alleged newly discovered evidence was sufficient to require the grant of a new trial.
3. As several witnesses testified that they saw the accused shoot the deceased without provocation, the evidence was amply sufficient to support the verdict rendered.
Judgment affirmed.
All the Justices concur, except AtJdnson, J.r not presiding.