Spivey v. State, (No. I8848.)

• Decision Date: 17 May 1928
• Docket Number: (No. I8848.)
• Parties: SPIVEY . v. STATE.
• Court: Georgia Court of Appeals

38 Ga.App. 213

143 S.E. 450

SPIVEY .

v.STATE.

(No. I8848.)

Court of Appeals of Georgia, Division No. 1.

May 17, 1928.

(Syllabus by the Court.)

Broyles, C. J., dissenting.

Error from Superior Court, Coffee County; Harry D. Reed, Judge.

Elisha Spivey was convicted of voluntary manslaughter, and he brings error. Reversed.

Chastain & Henson and Quincey & Quincey, all of Douglas, for plaintiff in error.

A. B. Spen'ce, Sol. Gen., of Waycross, and T. R. Gress, of Atlanta, for the State.

LUKE, J. Elisha Spivey was charged with the murder of John Wiggins, and was convicted of voluntary manslaughter. The court overruled the defendant's motion for a new trial, based upon the usual general grounds and upon seven special grounds, and the movant excepted.

Each of the first five of the special grounds alleges that the questioning of various witnesses by the court was error. Wherefore we shall discuss at length only the first of these grounds.

As a background for the first special exception, we deem it proper to state the following general outline of the case: The defendant and his wife, Thelma, had separated, Thelma living at the home of her parents, Mr. and Mrs. J. M. Wooten, and the defendant living several miles away. It had been agreed that first one and then the other of the young people should keep their baby. On May 4, 1927, Thelma went to get the baby. The defendant stated that he told his wife to go on home with the baby and not to be driving around after dark with John Wiggins or any one else. Thelma, with the baby, her younger sister, and John Wiggins drove up to the home of Mr. and Mrs. Wooten in a touring car shortly after dark. The defendant had preceded the others by only a very short time, and had just asked Mr. and Mrs. Wooten about the baby, when Wiggins' automobile, headed in the same direction, drove up to within a few feet of the rear of the defendant's car and stopped. The state's evidence was to the effect that the defendant got out of his car, walked close to where Wiggins was sitting in the other automobile, cursed him, and shot him dead, and that, after firing his pistol twice, the defendant shot his sister-in-law after she had gotten out of the automobile and had started towards her home. The defendant stated that the girl was hit in the car. It was in evidence that.the deceased hadthreatened to kill the defendant before he would let the latter run over him, and" that a pistol was found on the left end of the front seat of the automobile where Wiggins was sitting when he was shot. The defendant stated that he was worried about his baby; that Wiggins had threatened him; and that, when he approached the car his wife and baby were in, the deceased reached for the pistol to kill him, and he shot to save his life.

Ground 1 of the amendment to the motion for a new trial follows:

"The court erred in the trial of said case by propounding in the presence of the jury the following questions to the state's witness Mrs. J. M. Wooten while testifying for the state, and eliciting from her the answers as hereinafter set out to said questions so propounded by the court, to wit:

"Q. Did you see him after his hands were up? Did you see the body fall? A. No, sir; I didn't see the body fall. You see the car was full of smoke.

"Q. Is that the last impression you have in your mind of what you saw? A. Well, I just saw the car full of smoke, and heard the reports of the pistol, you know.

"Q. I mean, with reference to the man who was killed, what was his position, the last you saw before it was obscured by the smoke? A. Why, he was sitting up the last I saw him. I didn't see him fall.

"Q. Was it then that his hands were up? A. I don't know whether it was then. I suppose it must have been, because I couldn't have seen his hands "after he fell over.

"Q. How far above his head were his hands? A. Just about like this (illustrating), like he might have just throwed them up. I don't know whether he tried to get his pistol or not.

"Q. Was that about even with his head?

"Mr. Quincy: I didn't understand her answer, your honor, just what she said in reply to your question.

"The Court: I think I understood her. "Mr. Quincy: But I want the jury to understand it.

"The Court: All right, sir; you may examine her on cross-examination.

"Mr. Quincy: I just wanted her to say what she understood.

"The Court: I am not sure I understand you, judge. I asked her how high his hands were, and she said about like this.

"Mr. Quincy: I understood her to start to say she didn't know whether he went to get his pistol or not.

"The Court: She didn't say anything about a pistol at all.

"Mr. Quincy: That is what I understood, your honor.

"Mr. Chastain: May it please the court, I think the stenographer's notes will show that she did say something about a pistol.

"Q. (by the Court): Did you say anything about a pistol? A. I don't know whether he had started to get a pistol or not, because I couldn't see from where I was. Elisha, Mr. Spivey, was between me and him, and I couldn't tell what he was doing until I just saw the hand.

"Q. The question I asked you was how high he threw his hands when you saw his hands go up. A. Of course, I couldn't tell you just exactly how high; but, then, I saw his hands up. "Q. How high were they when you saw them? A. Well, it looked like he just throwed them up like this (illustrating).

"Q. Was that above his head? A. No, sir.

"Q. How high with reference to his head? A. Well, it seemed like they were just throwed up like that (illustrating).

"Q. As high as his head? A. I don't know whether it was as high as his head or not, because I don't remember."

Civil Code 1910, § 4863, and Penal Code 1910, § 1058, Inhibits the trial judge, in any case, from expressing or intimating his opinion as to what has or has not been proved, or as to the guilt of the accused, and provides that a violation of this provision shall work a reversal of the case. "The fact that the trial judge asked questions of witnesses is not cause for new trial, unless the complaining party suffered prejudice thereby" (O'Connell v. State, 5 Ga. App. 234 [5]), 62 S. E. 1007, but "trial judges should usually leave the examination of witnesses to the attorneys conducting the case" (Ray v. State, 4 Ga. App. 68, 60 S. E. 816); and, where the judge interrogates a witness at length upon any vital question in a felony case, he takes a grave risk of intimating or expressing an opinion on the evidence, and of bringing about a reversal by the reviewing court. In this connection, we quote from Sharpton v. State, 1 Ga. App. 548, 57 S. E. 932, as follows:

"It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial, without in some manner and to some extent indicating his own opinion. Every practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression. Therefore, while the trial judge has the right to ask questions of the witnesses whenever necessary to bring out the full truth of the case, we are not...