Chapman v. State

• Decision Date: 01 February 1919
• Docket Number: (No. 9744.)
• Citation: Chapman v. State, 23 Ga.App. 359, 98 S.E. 243 (Ga. App. 1919)
• Parties: CHAPMAN. v. STATE.
• Court: Georgia Court of Appeals

23 Ga.App. 359

98 S.E. 243

CHAPMAN.

v.STATE.

(No. 9744.)

Court of Appeals of Georgia, Division No. 2.

Feb. 1, 1919.

(Syllabus by the Court.)

While, ordinarily, it is reversible error for a trial judge, in any case, in his charge to the jury, or during its progress, within the hearing of the jury, to express or intimate his opinion as to what has or has not been proved (Civ. Code 1910, § 4863; Pen. Code 1910, § 1058), it is not a violation of the statute, where such expression or intimation of opinion occurs when the judge is discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the discharge of a defendant for the lack of evidence to convict, the direction of a verdict, or similar matters in the progress of the trial, or is explaining his rulings upon questions of this nature. Especially is this true where the party complaining of such expression is the one who invoked the ruling which occasioned it.

Stephens, J., dissenting.

(Additional Syllabus by Editorial Staff.)

Error from City Court of Jefferson; J. A. B. Mahaffey, Judge.

Arch Chapman was convicted of larceny, and he brings error. Affirmed.

Ray & Ray, of Jefferson, for plaintiff in error.

S. J. Nix, Sol., of Jefferson, for the State.

BROYLES, P. J. The defendant was charged with the larceny of one bushel of corn in the shuck, the property of the prosecutor, O. P. Aiken. Upon the trial the undisputed testimony of a witness for the state showed that he caught the defendant in the prosecutor's cornfield, about 9 or 10 o'clock at night; that he saw the defendant break off more than a bushel of ears of corn and put them in a sack. The undisputed testimony of the prosecutor, Aiken, was that the stolen corn was his. He further testified that he rented the land upon which the corn was grown from W. H. Smith, and that Smith was to get half of the corn raised thereon for the rent of the land, but that it was his (Aiken's) corn until it was made and gathered.

It clearly appears from the record, and a fair inference therefrom, that when Aiken had given this testimony counsel for the defendant made a motion that the defendant be discharged, or that a verdict of acquittal be directed, or some similar motion, on the ground that the evidence of Aiken showed that one-half of the corn belonged to Smith, his landlord, and that therefore the allegations in the accusation as to the ownership of the stolen property were not sustained by the proof. The judge, in passing upon this motion, and in denying it, said: "I will have to rule this is Mr. Aiken's corn under the testimony." This language was excepted to by the defendant as an expression of opinion to the jury on a material issue in the case, in violation of section 1058 of the Penal Code.

We do not think the provisions of that section apply to the facts of the instant case. In Croom v. State, 90 Ga. 430, 17 S. E. 1003, the third headnote is as follows:

"Generally what the court says in stating to counsel the reason for denying a motion to exclude or rule out evidence is, if pertinent to the question raised by counsel, not error, although the reason given involve a statement as to certain testimony which is already iu, or as to there being nothing in evidence showing that the circumstances are as the counsel claim."

In Realty Co. v. Ellis, 4 Ga. App. 402, 61 S. E. 832, the sixth headnote is as follows:

"It is not reversible error, under section 4334 of the Civil Code [of 1895; Code of 1910, § 4863], for the judge, in discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the direction of a verdict, or similar matters in the progress of the trial, or in explaining his rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided he does not go out of the line of legitimate discussion upon the point presented or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony."

In Jones v. Pope, 7 Ga. App. 538, 67 S. E. 280, this court said:

"A trial judge can state his reasons for admitting or refusing to admit evidence, if such reasons are pertinent to the objections to evidence and the ruling made thereon; and this statement does not constitute such an expression of opinion as is violative of section 4334 of the Civil Code."

In Louisville & Nashville R. R. Co. v. Tift, 100 Ga. 86, 27 S. E. 765, the Supreme Courtheld that, in overruling a motion to nonsuit, the judge may, within appropriate limits, state, in the hearing of the jury, his reasons for his decision. See, also, to the same effect, Wyley v. Stanford, 22 Ga. 397 (3); Rein-hart v. Miller, 22 Ga. 403 (10), 68 Am. Dec. 506; Milner v. State, 30 Ga. 137 (3), 139 (3); Perry v. Butt, 14 Ga. 699 (2), 705 (2); Scarborough v. State, 46 Ga. 26, 33; Claflin v. Continental Works, 85 Ga. 28, 11 S. E. 721 (6); Florida C. & P. R. R. Co. v. Lucas, 110 Ga. 121 (2), 124 (2), 35 S. E. 283; Brown v. State, 119 Ga. 572, 46 S. E. 833 (1); Hall v. State, 7 Ga. App. 115 (5), 119 (5), 66 S. E. 390.

In the Scarborough Case, Judge McCay said (on page 33) that:

"It would be impossible to carry on a trial if this section of the Code, prohibiting a judge from expressing any opinion as to what is proven, is to be construed as is contended for. A judge, in deciding as to admissibility of testimony, must always, to some extent, decide as to its weight, since often its admissibility depends on that, so he must often determine what has been proven so as to say whether certain other things may be proven. To decide a nonsuit, he must decide if there be enough proven to justify a verdict, etc The only practicable rule is to treat the jury as possessed of common sen3e, and as capable of understanding what is addressed by the judge to them and what is not. He may not express to the jury any opinion; but if in the decision of any legal question, as it arises, he must pass upon facts, the statute does not apply. It must be reasonably construed." (Italics ours.)

In Oliveros v. State, 120 Ga. 237, 47 S. E. 627, 1 Ann. Cas. 114, Simmons, C. J., said:

"Expression of opinion as to the weight of evidence may or may not be error, according to the circumstances under which the opinion is expressed; but, even where error, it need not be a violation of Civil Code, § 4334. Again, speaking for myself, I think this court has given this section too broad and liberal a construction. It was doubtless enacted to correct a custom of the judges, which had descended to them from the common-law courts of England and this country, but which the Legislature thought was a usurpation of the functions of the jury. Whether this be true or not, we all think that, when an 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." (Italics ours.)

Moreover, it has been held that, even where the expression of the judge's opinion occurs during his charge to the jury, this does not necessarily require the grant of a new trial. In Southern Insurance & Trust Co. v. Lewis, 42 Ga. 587, which was a suit on an insurance policy, the judge charged the jary that, in his opinion, the plaintiff had an insurable interest in the policy, and the Supreme Court, while stating that this was improper, and that the judge ought to have called the attention of the jury to the facts, and then said to them: "If you believe, " etc., "then, in the opinion of the court, under the law, you will find that he had an insurable interest, " nevertheless ruled that under the facts of the case—the case being clearly made out—this error was not sufficient ground for a reversal of the judgment. In Dexter Banking Co. v. McCook, 7 Ga. App. 436, 67 S. E. 113, this court held that:

"Where a particular fact is established by uncontradicted evidence, it is not error for the judge to assume or intimate that the fact has been proved."

This ruling in the Dexter Case was approved in Deen v....