Demonia v. State

Court of Appeals of Georgia

Demonia v. State

27 S.E.2d 101, 69 Ga. App. 862, 1943 Ga. App. LEXIS 197

CourtCourt of Appeals of Georgia

DecidedSeptember 15, 1943

Docket30115.

StatusPublished

Cited by9 cases

This text of 27 S.E.2d 101 (Demonia v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Demonia v. State, 27 S.E.2d 101, 69 Ga. App. 862, 1943 Ga. App. LEXIS 197 (Ga. Ct. App. 1943).

Pincite

Opinion

MacIntyre, J.

This is the third appearance of this case in this Court. See Demonia v. State, 66 Ga. App. 114 (17 S. E. 2d, 204); s. c. 68 Ga. App. 200 (22 S. E. 2d, 520). The defendant was charged with distilling or manufacturing and making alcoholic liquors, spirituous liquors, whisky and rum. 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.” Southern Express Co. v. State, 1 Ga. App. 700 (5) (58 S. E. 67). His statement to the jury was in effect that he had inadvertently just come up to where the still was in operation when the officers appeared; that he knew nothing about it and had nothing to do with it. Thus an issue was made as to whether the witness, who was referred to in that portion of *863 the charge excepted to, was an accomplice. Section 81-1104 of the Code forbids a trial judge to “express or intimate his opinion as to what has or has not been proved,” and declares that should he violate this section, the reversal of the case is mandatory. The court charged the jury: “Gentlemen of the Jury, one of the witnesses testified in this case to having worked at this still for this defendant, and that, under the law, constitutes what is known as an accomplice.” This was an expression or intimation of an opinion not only that the witness was an accomplice but that he was an accomplice of the defendant. Following the ruling made in Davis v. State, 91 Ga. 167 (17 S. E. 292); Holtzendorff v. De Renne, 129 Ga. 226 (58 S. E. 710); Suddeth v. State, 112 Ga. 407, 409 (37 S. E. 747); and Cook v. State, 40 Ga. App. 125 (149 S. E. 79), the charge now under consideration was erroneous, and a new trial must be granted.

Judgment reversed.

Broyles, G. J., and Gardner, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

MacIntyre, J.

This is the third appearance of this case in this Court. See Demonia v. State, 66 Ga. App. 114 (17 S. E. 2d, 204); s. c. 68 Ga. App. 200 (22 S. E. 2d, 520). The defendant was charged with distilling or manufacturing and making alcoholic liquors, spirituous liquors, whisky and rum. 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.” Southern Express Co. v. State, 1 Ga. App. 700 (5) (58 S. E. 67). His statement to the jury was in effect that he had inadvertently just come up to where the still was in operation when the officers appeared; that he knew nothing about it and had nothing to do with it. Thus an issue was made as to whether the witness, who was referred to in that portion of *863 the charge excepted to, was an accomplice. Section 81-1104 of the Code forbids a trial judge to “express or intimate his opinion as to what has or has not been proved,” and declares that should he violate this section, the reversal of the case is mandatory. The court charged the jury: “Gentlemen of the Jury, one of the witnesses testified in this case to having worked at this still for this defendant, and that, under the law, constitutes what is known as an accomplice.” This was an expression or intimation of an opinion not only that the witness was an accomplice but that he was an accomplice of the defendant. Following the ruling made in Davis v. State, 91 Ga. 167 (17 S. E. 292); Holtzendorff v. De Renne, 129 Ga. 226 (58 S. E. 710); Suddeth v. State, 112 Ga. 407, 409 (37 S. E. 747); and Cook v. State, 40 Ga. App. 125 (149 S. E. 79), the charge now under consideration was erroneous, and a new trial must be granted.

Judgment reversed.

Broyles, G. J., and Gardner, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

27 S.E.2d 101, 69 Ga. App. 862, 1943 Ga. App. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demonia-v-state-gactapp-1943.

Opinion

Related

Cite This Page — Counsel Stack