Moore v. State, (No. 13882.)

• Decision Date: 12 December 1922
• Docket Number: (No. 13882.)
• Citation: 115 S.E. 25,29 Ga.App. 274
• Parties: MOORE. v. STATE.
• Court: Georgia Court of Appeals

29 Ga.App. 274

115 S.E. 25

MOORE.

v.STATE.

(No. 13882.)

Court of Appeals of Georgia,

Division No. 1.

Dec. 12, 1922.

(Syllabus by the Court.)

Error from Superior Court, Atkinson County; R. G. Dickerson, Judge.

Freddie Moore was convicted of voluntary manslaughter, and he brings error. Reversed.

E. R. Smith, of Willacoochee, Quincey & Quincey, of Douglas, and Dickerson & Kelley, of Douglas, for plaintiff in error.

J. D. Lovett, Sol. Gen., and R. A. Hen-dricks, both of Nashville, and McDonald & Wiilingham, of Douglas, for the State.

LUKE, J. At the February, 1922, term of the superior court of Atkinson county Fred Moore, indicted for murder, was convicted of voluntary manslaughter. As this case will be tried again, we deem it unnecessary to pass upon all the numerous grounds of the motion for new trial. The facts upon which this decision is based are as follows:

The case was being tried in a courtroom on the second floor of a two-story building, the clerk's office being on the first floor. During the solicitor general's argument to the jury, and without suspending the trial, the judge, without the consent, objection, or comment of either the defendant or his counsel, left the courtroom to answer a longdistance telephone call in the clerk's office. After an absence of two or three minutes, or thereabouts, he returned to the bench. When the solicitor concluded his argument to the jury, the defendant's counsel moved for a mistrial because of the judge's absence during the progress of the trial. The motion was overruled, and the question for decision is whether this ruling was error. Numerous Georgia decisions condemn in the strongest terms the practice of allowing the trial of a case to proceed during the judge's absence. Justice Cobb, in the case of Home v. Rogers, 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176. said that the judge should never leave the courtroom for any purpose, for any length of time, without suspending the trial. He likewise said:

"The judge is such a necessary part of the court that his absence destroys the existence of the tribunal, and public policy demands that the tribunal authorized to pass upon the life, liberty, and property of the citizen should be constituted during the entire trial in the mariner prescribed by law."

In the earliest Georgia case dealing with the question under consideration—that of Hayes v. State, 58 Ga. 35 (12, 13)—it was held:

"In the trial of a capital case, especially during the examination of a witness for the state, the judge should not retire beyond the bar, for even a brief absence, without ordering a suspension of business until his return. The guilty and the innocent are entitled to be tried according to law, in the immediate presence of one of the state's judges, and with no material error in the charge."

In the case of Pritchett v. State, 92 Ga. 65(2), 18 S. E. 536, the same distinguished jurist (Chief Justice Bleckley) who wrote the decision in the Hayes Case, supra, further elucidated the proposition under consideration by holding:

"It is not proper for the presiding judge to absent himself from the courtroom during thetrial of a murder case, without suspending the trial during his absence; but such conduct on the part of the judge will not necessitate the granting of a new trial where it appears that he was absent only a few moments for a necessary purpose during the argument of defendant's counsel; it not appearing that any injury resulted therefrom to the accused, or that a motion to have a mistrial declared was made. In Hayes v. State ^ra a new trial was granted not alone because of similar conduct on the part of the judge, who absented himself during the examination of a witness for the state, but also because of serious errors in the charge. The ruling made in the case at bar is supported by O'Shields v. State, 81 Ga. 301."

In the case of O'Shields v. State, 81 Ga. 301, 6 S. E. 426, upon which Chief Justice Bleckley was content to rest the decision in the Pritchett Case, supra, the judge stated to the defendant's counsel that he desired to step out a little while, and asked him if he had any objection, and counsel replied that he had none. Justice Blandford in the O'Shields Case said:

"We think that the court acted improperly in not suspending the trial during his absence; but, as it does not appear that any harm came to the accused because of this irregularity (and none is pretended to have resulted to him on account of it), it is not a good ground for a new trial, under...