Parker v. State

• Decision Date: 23 May 1935
• Docket Number: 24782.
• Citation: 180 S.E. 390,51 Ga.App. 295
• Parties: PARKER v. STATE.
• Court: Georgia Court of Appeals

180 S.E. 390

51 Ga.App. 295

PARKER v. STATE.

No. 24782.

Court of Appeals of Georgia, First Division

May 23, 1935

Syllabus by the Court.

1. The following charge to the jury, "If from a consideration of the evidence, you find there is a conflict in the testimony between the witnesses, or between the witness or witnesses and the defendant's statement, it is your duty to reconcile that conflict, if you can, without imputing perjury to any witness and without imputing a false statement to the accused. If you can not do that, then it becomes your duty to believe that witness or those witnesses you think best entitled to believe, * * *" although inapt and not approved by this court, when taken with the charge as a whole, cannot be held to be reversible error.

2. There is nothing per se erroneous for a trial judge to propound questions to witnesses on the stand. The only limitation on his right in this connection is not to express or intimate any opinion as to what has or has not been proved. In order to take advantage of the conduct of the trial judge in propounding questions to witnesses as an expression or intimation of an opinion, it is necessary under the ruling of the Supreme Court in Moore v McAfee, 151 Ga. 270, 106 S.E. 274, that counsel make a motion for mistrial or other valid objections. This not having been done, it is not proper that counsel attempt to take advantage thereof in a motion for new trial. See Cline v. State, 49 Ga.App. 16, 174 S.E. 194, and cases cited. Ray v. State, 23 Ga.App. 124, 97 S.E 555.

3. The evidence supports the verdict. The other assignments of error are without merit. The trial judge did not err in overruling the motion for new trial.

Error from Superior Court, Long County; J. T. Grice, Judge.

Emma Parker was convicted of manslaughter, and she brings error.

Affirmed.

O. C Darsey, of Hinesville, for plaintiff in error.

J. P. Dukes, Sol. Gen., of Pembroke, for defendant in error.

GUERRY Judge.

Defendant was indicted by the grand jury of Long county, charged with the offense of murder. The jury returned a verdict of manslaughter. Defendant brings writ of error to review the action of the trial judge in overruling his motion for new trial.

1. The trial judge charged the jury as follows: "If from a consideration of the evidence, you find there is a conflict in the testimony between the witnesses, or between the witness or witnesses and the defendant's statement, it is your duty to reconcile that conflict, if you can, without imputing perjury to any witness and without imputing a false statement to the accused. If you can not do that, then it becomes your duty to believe that witness or those witnesses you think best entitled to believe, and you may consider their interest or want of interest in the result of the case, their bias or prejudice, if any appears, the reasonableness or unreasonableness of the statements they make, their familiarity with the facts they testify about, and also their personal credibility in so far as the same may legitimately appear, from the trial of the case. But the jury, as stated, are at last the sole and exclusive judges of what witnesses they will believe or disbelieve, and what testimony they will credit or discredit and what weight they will give the defendant's statement." This charge is excepted to on the grounds that (1) it emphasizes the weight of the sworn testimony, as against the statement of the defendant, and (2) that by this charge the jury were instructed that if there was a conflict between the testimony of the witnesses and the defendant's statement, that they should believe the testimony of the witnesses.

"The office of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issues involved in the pending trial as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents, law and fact, make a verdict." Thomas v. State, 95 Ga. 484, 22 S.E 315. The real important thing is that the charge be a clear picture, disclosing the rights of the parties on the issues involved therein. Central of Georgia R. Co. v. McKinney, 118 Ga. 535, 45 S.E. 430. There has arisen, therefore, the salutary principle, so aptly expressed by Judge Bleckley, that "a charge torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall." Brown v. Matthews, 79 Ga. 1, 4 S.E. 13, 14. Thus a portion of a charge excepted to as erroneous, misleading, or confusing must be considered with the context in which it was given, and the charge as a whole, and if, in doing so, the apparent error disappears, and it is not reasonably likely that the jury could have been misled or confused as to the correct principle, then the isolated part will not be declared reversible error. See, in this connection, The Savannah, Florida & Western Railway Company v. Flannagan, 82 Ga. 579, 9 S.E. 471, 14 Am.St.Rep. 183; Bloodworth v. State, 161 Ga. 332, 131 S.E. 80; Hamilton v. State, 169 Ga. 613, 151 S.E. 17; Harrison v. Hester, 160 Ga. 865, 129 S.E. 528; Savannah, Thunderbolt & Isle of Hope Ry. v. Grogan, 117 Ga. 461, 43 S.E. 701; Mousseau v. Dorsett, 80 Ga. 566, 5 S.E. 780; Central of Ga. R. Co. v. Leonard, 49 Ga.App. 689, 176 S.E. 137; Thomas v. State, 18 Ga.App. 21, 88 S.E. 718; Partee v. State, 19 Ga.App. 752, 92 S.E. 306; Weldon v. State, 21 Ga.App. 330, 94 S.E. 326; Mosley v. State, 11 Ga.App. 1, 74 S.E. 569; Harris v. State, 2 Ga.App. 406, 58 S.E. 669; Crawford v. State, 4 Ga.App. 789, 62 S.E. 501; Franke v. Berkner, 67 Ga. 264, For further cases, see treatment of this subject, vol. 1, Index Dig. Ga. Rep. Stevens, 400, 406, 416; vol. 7, Encyc. Dig. of Ga. Rep. Cum. Supp. 500-503. This rule is not in conflict with the principle that a charge which embodies an erroneous principle which has a tendency to injure the losing party is not cured by a subsequent instruction embodying a correct statement of the law, when attention is not called to the previous charge. This principle is based on the fact...