Harrison v. State
| Decision Date | 13 June 1917 |
| Docket Number | 8353. |
| Citation | 92 S.E. 970,20 Ga.App. 157 |
| Parties | HARRISON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The trial judge was not disqualified from passing upon the motion for a new trial because, when imposing sentence, he had used language strongly indicating his belief in the guilt of the defendant. Any rational disinterested person compelled to give attention to the testimony adduced at a criminal trial by reason of the fact that the proper conduct thereof rested upon him as the presiding judge, must necessarily form some opinion as to the guilt or innocence of the accused. To hold that an expression from the trial judge of his opinion that the accused is guilty, after the jury has returned a verdict so finding, would effectually disqualify such a judge from passing upon a motion for a new trial, and would negative the possibility of his fairly exercising the discretionary power vested in him by law as to the grant of a new trial on a review of the evidence, or would either invite or insure rulings on questions of law raised in such a motion adverse to the defendant, would bring into question the impartiality of every trial judge who uttered a word of condemnation of the crime or of the convicted criminal when imposing sentence, and throw an unmerited cloud of suspicion upon his purpose to execute the law in accordance with his official oath where anything more was then said than was necessary to simply indicate the punishment fixed by the judgment of the court. A rational, intelligent presiding judge, acquainted with the law of evidence, necessarily reaches some opinion during the progress of the trial as to the guilt of the accused; but this opinion, whether or not expressed at the time sentence is imposed, is presumably not fixed and irrevocable, but subject to change upon a review of the record when the motion for a new trial is finally presented for determination.
Two defendants were on trial, and the court instructed the jury that they "must be satisfied of the defendants' guilt beyond a reasonable doubt." This charge is not subject to the objection raised in the fourth ground of the amendment to the motion for a new trial that it excluded from the jury the question whether one defendant might be guilty and the other innocent, and presupposed that both were either guilty or innocent, when the excerpt is considered in connection with the entire charge and also in view of the following specific instruction elsewhere given: "It is your right, gentlemen, to find one of them guilty, and the other not guilty, if you find after such consideration of the case that one has been proven guilty, and you have not been satisfied or convinced of the guilt of the other."
When taken with its context, there was no reversible error in the use of the qualifying word "absolutely," and the word "impeached," in the instruction that "Where a witness has been successfully impeached, where his unworthiness of credit has been absolutely established it becomes the duty of the jury to discard or disregard the testimony of that witness in its entirety, unless it be corroborated by other material evidence in the case which you do believe, or unless corroborated by the proven circumstances of the case." "Absolutely," as used in this connection, may be properly understood to mean "completely" (Standard Dictionary), or fully thoroughly, entirely, or beyond a reasonable doubt, and unless a jury be satisfied that a witness is completely or absolutely unworthy of belief, his testimony should not be discarded or disregarded in its entirety, where not corroborated. See, in this connection, Elliot v. State, 138 Ga. 23, 24, 74 S.E. 691(2).
The defendant was tried for the offense of assault with intent to murder. While the use of a weapon likely to produce death raises a presumption of malice, where there are no circumstances...
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