Wash. v. State
| Decision Date | 08 November 1949 |
| Docket Number | No. 32479.,32479. |
| Citation | 80 Ga. App. 415,56 S.E.2d 119 |
| Court | Georgia Court of Appeals |
| Parties | WASHINGTON. v. STATE. |
Hattie Washington was convicted of an offense in the Superior Court, Pierce County, Walter Thomas, J., and she brought error.
The Court of Appeals, MacIntyre, P. J., reversed the judgment on ground that it was error requiring grant of a new trial for trial court to simply overrule, without remedial instructions to jury, defendant's objection to language used by solicitor general in his concluding argument to jury.
Syllabus by the Court.
It is error requiring the grant of a new trial for a trial court to simply overrule, without remedial instructions to the jury, the defendant's objection to the solicitor general's use of the following language in his concluding argument to the jury: "If a case had not been made out against the defendant, then the court could and would have directed a verdict of not guilty."
S. Thos. Memory, Blackshear, Memory & Memory, Blackshear, for plaintiff in error.
No appearance for defendant in error.
The error assigned in ground 1 of the amended motion for a new trial is that the court erred in overruling the defendant's objection to the following statement made by the Solicitor General in concluding argument to the jury: "If a casehad not been made out against the defendant, then the court could and would have directed a verdict of not guilty." When this statement was made, counsel for the defendant made the following objection: "If your honor please, I object to the argument of Mr. Walker [Solicitor General] to the effect that if a case had not been made out the court could and would direct a verdict of not guilty, on the ground that it is not proper argument, not justified by the evidence and the court should not permit him to argue that, because there might be a doubt that should be given to the defendant, and in that case the court would not direct a verdict; and, further that the court was not required to direct a verdict." The only action taken by the court was: "The objection is overruled." We think that the use of such a line of argument was distinctly improper. "When improper argument is made by counsel, counsel for the opposite party, in order to make the action of the judge in reference to the same the basis for a review, may object to the argument and rest simply on the objection, and if the court fails to take any notice of the objection and allows the argument to proceed, this conduct may be reviewed; or he may, in addition to his objection, move for appropriate instructions to the jury, or for a reprimand or rebuke of counsel in order that the jury may be impressed with the grave nature of the impropriety which has taken place, or, if the impropriety is of a very grave character, he may move for a mistrial, and upon the refusal of the court to do that which ought to have been done on the motion made, whatever its nature may be, the conduct of the judge will then be a subject for review by this court." Southern R. Co. v. Brown, 126 Ga. 1, 54 S.E. 911, 913, citing O'Dell v. State, 120 Ga. 152, 47 S.E. 577; Rawlins v. State, 124 Ga. 31, 33, 52 S.E. 1. In the present case, the defendant rested alone upon his objection which the court overruled. The Solicitor General was not instructed to desist in the use of such line of argument, the jury was not instructed to disregard the comment complained of, nor was any other remedial action taken by the trial court. Undoubtedly this conduct is subject to re view. Southern R. Co. v. Brown, supra; Brooks v. State 183 Ga. 466, 188 S.E. 711, 108 A.L.R. 752; Brooks v. State, 55 Ga. App. 227, 231, 189 S.E. 852; Lober v. State, 60 Ga.App. 204, 3 S.E.2d 597; Johns v. State, 79, Ga.App. 429, 54 S.E.2d 142. The question remains, however, whether the court's action in overruling the objection to the Solicitor General's argument without taking any corrective measures was so prejudicial and harmful as to require the grant of a new trial; or, in other words, is the total significance of such ruling of such gravity as to require the grant of a new trial. "There are two types of improper statements made in argument of counsel, to wit: (a) One that can be cured by the court['s] rebuking coun...
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