Per Curiam.
William G. McRae brought suit against John A. Boykin for alleged libel. The defendant answered, and filed a counter-claim based upon alleged libelous statements of the plaintiff concerning him, which he alleged had damaged him. The trial before a jury resulted in a verdict for the defendant for $1000. The plaintiff did not file a motion for a new trial, but carried the case by bill of exceptions directly to the Court of Appeals, complaining that the court below had committed alleged errors which he contended were controlling. The Court of Appeals overruled a motion to dismiss the writ of error, and reversed the judgment of the trial court. McRae v. Boykin, 50 Ga. App. 866 (179 S. E. 535). The motion to dismiss was based on the ground that a motion for a new trial was necessary, thus raising an important practice question. On petition of Boykin, the defendant in error, certiorari was granted. Only such parts of the decision as overruled the motion to dismiss and as reversed the judgment are under review in this proceeding. One of the alleged errors was that the judge failed to write out his charge and read it to the jury, in accordance with a timely and proper request. The bill of exceptions, as sued out by the plaintiff, McRae, contained the statement that the verdict against him was not demanded by the evidence. It will be assumed that the request referred to was in proper form and was duly presented to the trial judge. It was embodied in a paper which contained, in addition, certain requests to charge, stated in numbered paragraphs. The particular request here under consideration was in the first paragraph, which was not numbered. This document reached the judge two days before counsel began their arguments. The failure of the judge to comply with the request was, by direction of the court, explained in the bill of exceptions, as follows:
“Upon examining the paper the judge saw that it was separate requests to charge. He thereupon studied the separate requests and made the notation of them shown on the paper. He did not read the first paragraph, presuming that the portion of the paper there set out was a mere statement of the case. The first time the judge actually knew that there was anything in the paper about a written charge was when his secretary stated to the judge that counsel for the plaintiff had stated that such a request had been made. This was after the jury had been charged and had retired, but before a [254]*254verdict had been rendered. The judge sent for plaintiff’s counsel and stated to him he was not aware of any such request being made. Plaintiff’s counsel stated that it had been made. This paper . . was then referred to and the judge’s attention called to the first paragraph. The judge thereupon said he had not seen this statement before. Plaintiff’s counsel stated that it was not a trick, but was made bona fide. Plaintiff’s counsel further stated that it would not amount to anything, as they were not going up on a motion for a new trial, but plaintiff’s counsel added that plaintiff was not waiving anything. At the time,this statement was made by plaintiff’s counsel the judge, if he had construed the request as amounting to a request that he write out his charge and read it to the jury and file it with the clerk, could have brought the jury in, if he had not understood that the request would not be insisted upon, and could have withdrawn the charge as given verbally and as taken clown by the official reporter, and have instructed the jury to disregard the same,' and could have written out his charge and read it to the jury. . . Plaintiff’s counsel did not himself hand the paper to the judge, and did not at any time before the charge was delivered call the judge’s attention to there having been made to the court a request for a written charge, though counsel did ask the court if the court had received plaintiff’s requests. After the conclusion of all the arguments and just before the charge was commenced and after the jury was reconvened for the sole purpose of hearing the charge, plaintiff’s counsel arose and verbally and in writing . . requested the court to instruct the jury relative to a certain section of the Florida law, which he read to the court in the presence of the jury. At this time plaintiff’s counsel did not suggest the necessity for putting the charge so requested in writing, nor did plaintiff’s counsel suggest that there had been any issue along this line. At the conclusion of the charge as given by the court, the question arose of permitting the jury to render a verdict in the absence of the court. The plaintiff’s* counsel expressed his willingness for a verdict to be received in the absence of the court. The defendant’s counsel was unwilling for this to be done, unless the jury were furnished written forms which they could follow as models in rendering whatever verdict they might determine to render. Thereupon certain forms covering the different possible verdicts in this case.were prepared and agreed upon by [255]*255counsel, and the court then had these written forms handed to the jury, and verbally instructed the jury as to the use of these forms. At the time this occurred, with the consent of counsel for both sides, no suggestion was made to the court by plaintiff’s counsel that he had requested a written charge, or that anything was being done contrary to any request as to the manner of charging the jury; but, on the contrary, the plaintiff’s counsel expressly agreed to what has just been stated.”
The petition for certiorari contained, among others, an exception to the refusal of the Court of Appeals to dismiss the writ of error on the alleged ground that the failure of the trial judge to write out his charge and read it to the jury could be assigned as error only in a motion for a new trial, and that a direct bill of exceptions would not lie in such case.
It is error for the judge to refuse a timely and proper request to write out his charge and read it to the jury; and such error may be complained of in a direct bill of exceptions, without a motion for a new trial, where it appears that the verdict Was not demanded. Harris v. McArthur, 90 Ga. 216 (4) (15 S. E. 758). That was a unanimous decision, rendered when the court was composed of three Justices. It was reviewed and limited in Geer v. Dancer, 148 Ga. 465 (4) (97 S. E. 406), but was not overruled so far as it applies to a case where the verdict was not demanded, but in such case it remains the law. To limit it further the concurrence of at least five Justices of the present bench is necessary (Code of 1933, § 6-1611), and not as many as five agree to do so. The decision is therefore controlling upon the practice question. See Citizens Bank of Bainbridge v. Fort, 142 Ga. 611 (83 S. E. 235). It follows that the Court of Appeals did not err in refusing to dismiss the writ of error.
But, under the facts of this case, was it cause for reversal that the judge failed to reduce his charge to writing and read it to the jury, as requested? This question must be answered in the negative. Under the recitals contained in the bill of exceptions, the request appears to have been waived. The facts, when stated according to their sequence, were as follows: (1) The request for a written charge was made two days before the arguments began. (2) “Just before the charge was commenced,” the plaintiff’s counsel “ verbally and in writing . . requested the court to instruct [256]*256the jury relative to a certain section of the Florida law, which he read to the court in the presence-of the jury.
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Per Curiam.
William G. McRae brought suit against John A. Boykin for alleged libel. The defendant answered, and filed a counter-claim based upon alleged libelous statements of the plaintiff concerning him, which he alleged had damaged him. The trial before a jury resulted in a verdict for the defendant for $1000. The plaintiff did not file a motion for a new trial, but carried the case by bill of exceptions directly to the Court of Appeals, complaining that the court below had committed alleged errors which he contended were controlling. The Court of Appeals overruled a motion to dismiss the writ of error, and reversed the judgment of the trial court. McRae v. Boykin, 50 Ga. App. 866 (179 S. E. 535). The motion to dismiss was based on the ground that a motion for a new trial was necessary, thus raising an important practice question. On petition of Boykin, the defendant in error, certiorari was granted. Only such parts of the decision as overruled the motion to dismiss and as reversed the judgment are under review in this proceeding. One of the alleged errors was that the judge failed to write out his charge and read it to the jury, in accordance with a timely and proper request. The bill of exceptions, as sued out by the plaintiff, McRae, contained the statement that the verdict against him was not demanded by the evidence. It will be assumed that the request referred to was in proper form and was duly presented to the trial judge. It was embodied in a paper which contained, in addition, certain requests to charge, stated in numbered paragraphs. The particular request here under consideration was in the first paragraph, which was not numbered. This document reached the judge two days before counsel began their arguments. The failure of the judge to comply with the request was, by direction of the court, explained in the bill of exceptions, as follows:
“Upon examining the paper the judge saw that it was separate requests to charge. He thereupon studied the separate requests and made the notation of them shown on the paper. He did not read the first paragraph, presuming that the portion of the paper there set out was a mere statement of the case. The first time the judge actually knew that there was anything in the paper about a written charge was when his secretary stated to the judge that counsel for the plaintiff had stated that such a request had been made. This was after the jury had been charged and had retired, but before a [254]*254verdict had been rendered. The judge sent for plaintiff’s counsel and stated to him he was not aware of any such request being made. Plaintiff’s counsel stated that it had been made. This paper . . was then referred to and the judge’s attention called to the first paragraph. The judge thereupon said he had not seen this statement before. Plaintiff’s counsel stated that it was not a trick, but was made bona fide. Plaintiff’s counsel further stated that it would not amount to anything, as they were not going up on a motion for a new trial, but plaintiff’s counsel added that plaintiff was not waiving anything. At the time,this statement was made by plaintiff’s counsel the judge, if he had construed the request as amounting to a request that he write out his charge and read it to the jury and file it with the clerk, could have brought the jury in, if he had not understood that the request would not be insisted upon, and could have withdrawn the charge as given verbally and as taken clown by the official reporter, and have instructed the jury to disregard the same,' and could have written out his charge and read it to the jury. . . Plaintiff’s counsel did not himself hand the paper to the judge, and did not at any time before the charge was delivered call the judge’s attention to there having been made to the court a request for a written charge, though counsel did ask the court if the court had received plaintiff’s requests. After the conclusion of all the arguments and just before the charge was commenced and after the jury was reconvened for the sole purpose of hearing the charge, plaintiff’s counsel arose and verbally and in writing . . requested the court to instruct the jury relative to a certain section of the Florida law, which he read to the court in the presence of the jury. At this time plaintiff’s counsel did not suggest the necessity for putting the charge so requested in writing, nor did plaintiff’s counsel suggest that there had been any issue along this line. At the conclusion of the charge as given by the court, the question arose of permitting the jury to render a verdict in the absence of the court. The plaintiff’s* counsel expressed his willingness for a verdict to be received in the absence of the court. The defendant’s counsel was unwilling for this to be done, unless the jury were furnished written forms which they could follow as models in rendering whatever verdict they might determine to render. Thereupon certain forms covering the different possible verdicts in this case.were prepared and agreed upon by [255]*255counsel, and the court then had these written forms handed to the jury, and verbally instructed the jury as to the use of these forms. At the time this occurred, with the consent of counsel for both sides, no suggestion was made to the court by plaintiff’s counsel that he had requested a written charge, or that anything was being done contrary to any request as to the manner of charging the jury; but, on the contrary, the plaintiff’s counsel expressly agreed to what has just been stated.”
The petition for certiorari contained, among others, an exception to the refusal of the Court of Appeals to dismiss the writ of error on the alleged ground that the failure of the trial judge to write out his charge and read it to the jury could be assigned as error only in a motion for a new trial, and that a direct bill of exceptions would not lie in such case.
It is error for the judge to refuse a timely and proper request to write out his charge and read it to the jury; and such error may be complained of in a direct bill of exceptions, without a motion for a new trial, where it appears that the verdict Was not demanded. Harris v. McArthur, 90 Ga. 216 (4) (15 S. E. 758). That was a unanimous decision, rendered when the court was composed of three Justices. It was reviewed and limited in Geer v. Dancer, 148 Ga. 465 (4) (97 S. E. 406), but was not overruled so far as it applies to a case where the verdict was not demanded, but in such case it remains the law. To limit it further the concurrence of at least five Justices of the present bench is necessary (Code of 1933, § 6-1611), and not as many as five agree to do so. The decision is therefore controlling upon the practice question. See Citizens Bank of Bainbridge v. Fort, 142 Ga. 611 (83 S. E. 235). It follows that the Court of Appeals did not err in refusing to dismiss the writ of error.
But, under the facts of this case, was it cause for reversal that the judge failed to reduce his charge to writing and read it to the jury, as requested? This question must be answered in the negative. Under the recitals contained in the bill of exceptions, the request appears to have been waived. The facts, when stated according to their sequence, were as follows: (1) The request for a written charge was made two days before the arguments began. (2) “Just before the charge was commenced,” the plaintiff’s counsel “ verbally and in writing . . requested the court to instruct [256]*256the jury relative to a certain section of the Florida law, which he read to the court in the presence-of the jury. At this time plaintiff’s counsel did not suggest the necessity for putting the charge so requested in writing.” (3) “At the conclusion of the charge as given by the court, the question arose of permitting the jury to render a verdict in the absence of the court. The plaintiff’s counsel expressed his willingness for a verdict to be received in the absence of the court. The defendant’s counsel was unwilling for this to be done, unless the jury were furnished written forms which they could follow as models in rendering whatever verdict they might determine to' render. Thereupon forms covering the different possible verdicts in this case were prepared and agreed upon by counsel, and the court then had these written forms handed to the jury, and verbally instructed the jury as to the use of these forms. At the time this occurred, with the consent of counsel for both sides, no suggestion was made to the court by plaintiff’s counsel that he had requested a written charge, or that anything was being done contrary to any request as to the manner of charging the jury, but, on the contrary, the plaintiff’s counsel expressly agreed to what has just been stated.” (4) After the jury “had been charged” and had retired, but before a verdict had been rendered, the judge’s secretary informed him that counsel for the plaintiff had stated that “such a request had been made,” that is, a request that the charge be reduced to writing and read to the jury. “The judge'sent for plaintiff’s counsel and stated to him that he was not aware of any such request being made. The plaintiff’s counsel stated that it had been made. This paper . . was then referred to and the judge’s attention called to the first paragraph. The judge thereupon said he had not seen this statement before. Plaintiff’s counsel stated that it was not a trick, but was made bona fide. Plaintiff’s counsel further stated that it would' not amount to anything, as they were not going up on a motion for a new trial, but plaintiff’s counsel added that plaintiff was not waiving anything. At the time this statement was made by plaintiff’s counsel the judge, if he had construed the request as amounting to a request that he write out his charge and read it to the jury, and file it with the clerk, could have brought the jury in if he had not understood that the request would not be insisted upon, and could' have withdrawn the charge as given verbally and as taken down by the official [257]*257reporter, and could have instructed the jury to disregard the same, and could have written out his charge and read it to the jury.”
The oral request for a charge on the Florida law evidently did not contemplate a written charge upon this subject, and the agreement of counsel that the judge might "verbally” instruct the jury as to the proper use of the written forms of verdict was utterly inconsistent with the previous request for an entire written charge. It is true that the judge had not as yet noticed the request for a written charge, as filed two days previously; but these facts were pertinent for his consideration when he did discover it and had to determine what he would then do with it. TJpon the question of waiver, the judge’s ignorance of the request at that time is immaterial. When the request for a written charge finally came to the attention of the judge, he sent for the plaintiff’s attorney, who stated "that it would not amount to anything” in view of the future procedure contemplated. The attorney added that the plaintiff was not waiving anything; but if the request did not amount to anything, there was nothing to waive. To say that the request did not amount to anything was to describe it as being totally worthless. This was an expression of the attorney’s own conception of its unimportance at that time, and stronger language could hardly have been employed. It could have had no other meaning except that, under the procedure which the plaintiff intended to adopt, the failure of the judge to comply with the request would be of no consequence, or would not afford any cause for complaint, even though the plaintiff did not waive compliance. It was in effect a statement that, in view of the anticipated procedure, the matter was not of sufficient importance to require a suspension of the trial at that stage for the purpose of complying with the request, because if the plaintiff did except, the exception would be without merit. The bill of exceptions recites in substance that the judge reached the conclusion “that the request would not be insisted upon;” otherwise he " could have withdrawn the charge as given verbally and as taken down by the official reporter, and could have instructed the jury to disregard the same, and could have written out his charge and read it to the jury.” From all the circumstances, this conclusion was abundantly authorized, and the statement of counsel as to non-waiver did not require a different action by the trial judge. [258]*258One may say he will not waive, and yet waive. Cumming v. State, 155 Ga. 346 (2), 349 (117 S. E. 378).
In two instances before the case was submitted to the jury under the charge of the court, the action of the plaintiff’s attorney, as outlined above, indicated an abandonment of the request. Finally it was declared that the request did not amount to anything. While at the time of the last statement there was a reservation against waiver, there was no reservation on the previous occasions. From all the facts appearing, there can be no reasonable inference other than that the request was waived; and in this view the question of estoppel need not be considered.
So much of the decision in Wheatley v. West, 61 Ga. 401 (4), as related to “express waiver” was obiter, there being nothing to show the basis of the judge’s “impression.” Furthermore, the decision in that case was rendered by a divided court, and will not be followed to the extent of holding that such a request once presented can not be waived except in express terms. Except for the decision in that case, which the Court of Appeals doutbless felt constrained to follow, a different result might have been reached by that court.
On motion for rehearing, the opinion as originally filed in this case has been revised, with the result that the foregoing is now delivered as the decision of the court.
Judgment reversed.
All the Justices concur, except