Brown v. State, (No. 5440.)

• Decision Date: 16 February 1927
• Docket Number: (No. 5440.)
• Citation: 163 Ga. 684,137 S.E. 31
• Parties: BROWN. v. STATE.
• Court: Georgia Supreme Court

163 Ga. 684

137 S.E. 31

BROWN.

v.STATE.

(No. 5440.)

Supreme Court of Georgia.

Feb. 16, 1927.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED].

Error from Superior Court, Fayette County; W. E. H. Searcy, Jr., Judge.

Melvin Brown was convicted of murder, and he brings error. Affirmed.

Joe Hill Smith, of Atlanta, for plaintiff in error.

E. M. Owen, Sol. Gen., of Griffin, Geo. M. Napier, Atty Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

RUSSELL, C. J. Melvin Brown, together with Rainey Cauthern, Arthur Alexander, Ora Whittle, Oscar Dutton, and Melvin Windham, as principals, and Charlie Waller and John Waller, as accessories before the fact, were indicted for the murder of James C. Langston. In the trial now under review Melvin Brown alone was upon trial. In the trial Rainey Cauthern and Melvin Windham, who pleaded guilty to the murder as charged, were witnesses. Brown was convicted. He moved for a new trial, which was refused. He excepted to this judgment. It is also assigned as error that the judge directed to be inserted in the record of the brief of the evidence adduced upon the trial an amendment submitted by state's counsel, purporting to contain additional evidence of George Samuels, which was objected to by the plaintiff in error "on the ground that George Samuels did not testify in this manner, and that the reporter's transcript of the evidence did not show as a part thereof the language inserted by the solicitor general in the brief of evidence under the direction and by the approval of the court, and which was certified to by the judge as a part of the evidence in the case." Exception is also taken to the fact "that on April 13, 1926, the Honorable Judge W. E. H. Searcy, Jr., refused to certify and order sent up to the Supreme Court the question and answer report of the court reporter in said case, " which plaintiff in error claims is necessary to a clear understanding of this case. We shall consider these exceptions in reverse order.

1. It was not error to refuse to certify and order sent to the Supreme Court "the question and answer report of the court reporter." Section 6093 of the Code prescribes as follows:

"The brief of evidence required in motions for new trial shall be a condensed and succinct brief of the material portions of the oral testimony, including a similar brief of interrogatories read on the trial. In such brief there shall be included the substance of all material portions of all documentary evidence. Documentary evidence copied as an exhibit or set out in the pleadings, and introduced in evidence, shall not be set out in the brief except by reference to the same. In all cases in which the testimony has been stenographically reported, the same may be reduced to narrative form, or the stenographic report may be used in whole or in part in making up the brief, with immaterial questions and answers and parts thereof stricken, so as in every case to shorten the brief and include therein only material evidence."

This section was taken from the act of 1889 (Ga. L. 1889, p. 119), and the statute was passed for the purpose of lightening the labors of the Supreme Court and obviating the necessity of the members of this court having to wade through a mass of questions and answers which might have been necessary upon the original trial in order to elicit material information as in the case of ignorant, interested, or unwilling witnesses. The legislative act sought for condensation of the evidence, to the end that only evidence material to the issues sought to be reviewed would obtain, excluding all irrelevant matter and extraneous issues. Expressly, the brief of evidence is not dependent upon a stenographic report; the act providing only that the stenographic report may be used when reduced to narrative form. Under numerous decisions of this court, the rule which provides for the transmission of a brief of evidence, either as a part of the transcript of the record or as embodied in the bill of exceptions itself, requires that such brief of the oral testimony be in narrative form—a brief of evidence merely setting forth in condensed form such facts appearing in the testimony of each witness as are material to the real issues in the case without repetition—"the briefer, the better." Properly construing section 6093, the use of the question and answer form in the preparation of a brief of evidence, except in very unusual instances, such as pointed out in Crumbley v. Brook, 135 Ga. 723, 725, 70 S. E. 655, is not permissible. On the contrary, as held by this court in Whitaker v. State, 138 Ga. 139, 75 S. E. 254, when there is no legal brief of evidence filed with the motion for a new trial, but only a document which fails to comply with section 6093, the court should not look to such document for the purpose of determining the questions raised in the motion for a new trial. Violation of the rule which requires abbreviation of the record of the evidence as delivered in the trial court has frequently debarred plaintiffs in error from securing from the court of review any consideration-of alleged errors depending upon the consideration of the evidence. If it was the intent of the plaintiff inerror to have the stenographic report of the court reporter transmitted to this court for the purpose of establishing or disproving any portion of the brief of evidence as to which there was a difference between the recollection of the trial judge and any other person, the trial judge nevertheless correctly declined to order the transmission to this court of the "question and answer report of the court reporter in said case, " for reasons which will be stated in the next division of this opinion.

2. As appears from, the record in this case, the plaintiff in error presented a bill of exceptions on April 13, 1926, which the trial judge refused to certify. On April 15, 1926, in accordance with the provisions of section 6158 of the Civil Code of 1910, the judge returned the bill of exceptions for correction in certain respects pointed out in the court's order of that day. The present bill of exceptions was tendered on April 23, 1926. As appears from the order of the judge which accompanied the return of the bill of exceptions for correction, the court refused to certify and direct to be transmitted to this court certain matter which he adjudged to be immaterial and irrelevant to the error complained of, with relation to the amendment to the brief of evidence, stating, as to the change in the bill of exceptions which the court was directing, that "It is only necessary to allege in the bill of exceptions that the reporter's transcript of evidence did not contain as a part thereof the language inserted by the solicitor general in the brief of evidence under the direction and by the approval of the court, and which was certified to as a part of the evidence in the case." The exception based upon this assignment of error is that the judge inserted evidence into the brief of evidence, and thus, in the transcript of the record placed before this court, testimony which was not delivered, because such testimony does not appear in the report of the evidence as transcribed by the stenographer. As to this, it sufficeth to say that this court, like all other courts of review, can go to no other source to ascertain the truth than to the record of the trial as certified to be...