Cole v. State
| Decision Date | 13 October 1909 |
| Docket Number | (No. 2,114.) |
| Citation | 65 S.E. 839,6 Ga.App. 798 |
| Parties | COLE . v. STATE. |
| Court | Georgia Court of Appeals |
The trial judge should not in the hearing of the jury make any remark tending to compliment or disparage a witness. It is reversible error for him to state facts of his own knowledge, or, as of his own knowledge, tending to exculpate the witness from an offense charged against him, or tending to show that there were mitigating circumstances connected with the offense.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.*]
The error referred to in the foregoing head-note falls within the purview of section 1032 of the Penal Code of 1895 (Civ. Code 1895, § 4334), under which the court has no discretion as to the grant of a new trial. The language is mandatory: "It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such case reversed, and a new trial granted with such directions as the Supreme Court may lawfully give."
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. 3215-3219; Dec. Dig. § 1180.*]
(Syllabus by the Court.)
Error from Superior Court, Fannin County; N. A. Morris, Judge.
Arthur Cole was convicted of an offense, and he brings error. Reversed.
The conviction of the defendant rests solely upon the testimony of a witness named A. W. Axley. During the cross-examination the defendant's counsel propounded the following questions: "Are you the same A. W. Axley who was indicted at the May term of Fannin superior court for the offense of larceny from the house?" The witness replied: The judge of his own motion interfered at this point, and prevented the witness from answering the last question. Counsel for the defendant said: "I desire to offer in evidence the indictment and the order nolle prosequi reciting these facts and signed by your honor." The court replied: This action of the court is made the basis of one ground of the defendant's motion for new trial. In addition to the facts stated above, it is probably proper to state that it appears from a statement by the judge in the record that the defendant was generally known as a persistent violator of the liquor laws of the state, and public sentiment was strongly aroused against him; that a petition of citizens had been filed with the judge asking that the defendant be tried and severely punished; that it was hard to get testimony against him. The only witness against him on the present trial was the young man, Axley. His testimony was given with considerable reluctanse and evasion. It was only after the court had addressed him and had reminded him that he was on oath that he gave the testimony upon which the conviction rested.
Thos. A. Brown and Griffin & Attaway, for plaintiff in error.
J. P. Brooke, Sol. Gen., for the State.
POWELL, J. (after stating the facts as above). There is only one mandatory ground for new trial under the law of this state. All other grounds are, in at least some degree, discretionary. There is one error whichalways under all circumstances results in a new trial. As to other errors, particular facts and circumstances of the case may justify the court in holding them harmless. This error which the Legislature of this state has exalted to such importance is referred to in section 4334 of the Civil Code of 1805, and in section 1032 of the Penal Code of 1895. "It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such case reversed, and a new trial granted with such directions as the Supreme Court may lawfully give." Pen. Code 1895, § 1032. This is the lawmaking power speaking directly to the judiciary. Could language be more mandatory? The credibility and standing of the witnesses is an issuable fact in every case—a most material fact. Therefore anything which tends to uphold, to support, to disparage or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case, and in a criminal case, with the guilt or innocence of the accused. Hence it has been repeatedly held by the Supreme Court that it is reversible error in a criminal case for the trial judge to compliment a witness for the prosecution, or to say anything to disparage a witness for the defense, and the truthfulness or the justness of the criticism upon the witness, the motives prompting the judge to such language, and all such things must in every case be disregarded, as not changing the character of the error.
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Jones v. State, 76600
... ... Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case ... " Cole v. State, 6 Ga.App. 798, 799, 65 S.E. 839 (1909) ... Even though unintentional, the court stepped over the line between explaining its ruling and intimating its opinion on issues which were the sole province of the jury. See Taylor v. State, 2 Ga.App. 723, 729(3), 59 S.E. 12 ... ...
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Craft v. State
... ... State, 164 Ga.App. 638, 640(1), 298 S.E.2d 619 (1982), the trial judge in the presence of the jury "in effect dared the appellant to take a polygraph test on the central issue of his guilt or innocence." ... 42. Jones v. State, 189 Ga.App. 232, 233(1), 375 S.E.2d 648 (1988); Cole v. State, 6 Ga.App. 798, 65 S.E. 839 (1909) ... ...
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