Morse v. State

• Decision Date: 07 November 1911
• Docket Number: 3,640.
• Parties: MORSE v. STATE.
• Court: Georgia Court of Appeals

72 S.E. 534

10 Ga.App. 61

MORSE v. STATE.

No. 3,640.

Court of Appeals of Georgia

November 7, 1911

Syllabus by the Court.

It is not error for the judge to charge the jury that "evidence may be autoptic proference," when the meaning of the technical words is clearly made known to the jury in plain, understandable language.

Whether a judge, by language used in his charge to the jury, violates the provisions of the Code, by intimating or expressing an opinion as to what has been proved, will be determined in the light of the entire context; and, though it appears that the language, standing alone, might convey an intimation of the judge's opinion on one of the facts of the case, still if, from an examination of the entire context, it appears that the language was in fact hypothetical, no infraction of the statutory limitation upon the judge's power will be declared, unless, indeed, the very ambiguity of the language is such as naturally to leave upon the minds of the jury the impression that the judge was in fact intimating or expressing an opinion upon some issuable phase of the case.

Where in a case involving the question as to whether a certain liquid is an intoxicating liquor, the state introduces in evidence the liquor itself, it is proper for the court to instruct the jury that they may make personal inspection of the liquid, may apply their own senses to it, may look at it smell of it, taste of it, and thereby determine whether it is or is not an intoxicating liquor, subject to the limitation that they must not drink such a quantity as that, if it were intoxicating liquor, it would make them drunk.

A general verdict of guilty, upon an indictment containing two counts charging different offenses, which are in fact, as well as in theory, separate transactions, cannot be sustained, where there is no evidence to support a prosecution upon one of the counts.

(Additional Syllabus by Editorial Staff.)

The expression "autoptic proference" means "real evidence," or "demonstrative evidence"; the word "autoptic" being a good word, with pride of ancestry, though without hope of posterity, but the word "proference" is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father.

Error from Superior Court, Bibb County; W. H. Felton, Judge.

John Morse was convicted of violation of a prohibitory law, and brings error. Reversed.

Jesse Harris, C. A. Glowson, and John P. Ross, for plaintiff in error.

W. J Grace, Sol. Gen., for the State.

POWELL J.

Morse was tried on an accusation containing two counts, the first of which charged the sale of intoxicating liquors, and the other of which charged the keeping of liquors on hand at his place of business.

The first assignment of error is that the court erred in charging the jury as follows: "Evidence may be autoptic proference." Error is assigned as to this charge on two grounds: (1) That the statement is abstractly incorrect; and (2) that it is misleading. Considering these points in reverse order, we may say (to borrow a Hibernicism from the private vocabulary of an ex-justice of the Supreme Court of this state) that the language excepted to is neither leading nor misleading.

As to the other objection--that the language is abstractly incorrect--if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, § 1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while "autoptic" is a good word, with pride of ancestry, though perhaps without hope of posterity, the word "proference" is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This court is rather liberal in allowing the judges on the trial benches the privilege of big words. Cf. G., F. & A. R. Co. v. Sasser, 4 Ga.App. 276, 61 S.E. 505, wherein we refused to reverse the judgment because a judge of a city court used the word "obvious" in his charge to the jury.

Now, lest our manner of treating this exception be regarded as a reflection upon the very able judge of the superior court whose language is under review, let us hasten to explain that the language is all right--that to quote the excerpt alone does him injustice. During the progress of the trial, certain bottles and their contents had been introduced in evidence and were given the jury for their consideration, and the necessity was upon the judge of explaining to the jurors what use they could make of this class of testimony. As to such evidence the older writers used the phrase "real evidence"; but Professor Wigmore in his wonderful treatise, has pointed out that this is not an accurate expression, and has coined a new phrase, "autoptic proference," to express it. Following Wigmore, Judge Felton used this expression, and then most clearly explained and illustrated to the jury, in plain, simple, homely language, just what the big words mean.

2. The next assignment of error is that the judge, in making this explanation and in applying it to the facts of the present case, intimated or expressed an opinion as to one of the essential elements of the case. Vast quantities of what purported to be intoxicating liquors were found in and about the defendant's place of business. Along with the other evidence, the state introduced two baskets containing half-pint bottles, some labeled "rye whisky," some "gin," and some "peach brandy," and containing liquors resembling in color and odor the intoxicating liquor indicated by the labels on the respective bottles; also a barrel similarly filled. The defendant introduced no testimony, and made no statement in his own behalf to the jury; but he did contend, through his counsel that the state had not proved that the contents of the bottles were in fact intoxicating liquors. The judge charged the jury...