Hill v. State , 73 Ga. App. 293 ( 1945 )

A rule of the superior court, as embodied in section 6261 of the Code of 1910, is as follows: "Arguments of counsel shall be confined to the law and the facts involved in the case then before the court, on pain of being considered in contempt; and in all civil cases questions of law shall be argued exclusively to the court, and questions of fact to the jury." (Italics mine.) Rome Railroad Co. v.Barnett, 94 Ga. 446 (2), (20 S.E. 355). The convention of the superior court judges in July, 1924, amended this rule, which is embodied in section 24-3319 of the Georgia Code (Ann. Supp.), so as to read as follows: "Arguments of counsel shall be confined to the law and the facts involved in the case then before the court, on pain of being considered in contempt; and in all civil cases questions of law shall be argued exclusively to the court, and questions of fact to the jury. Counsel shall not be permitted, in the argument of criminal cases, to read to the jury recitals of fact [not facts stated in the opinion which are necessary to illustrate the principle ruled] or the reasoning of the court as applied thereto, in decisions by the Supreme Court or Court of Appeals." (Italics and brackets mine.)

Section 626 of the Code of 1910 made no specific reference to criminal cases. I think that, if the amendment in question had meant to make the rule in criminal cases the same as in civil cases, it would have merely added the words, "and in all criminal cases," after the words, "in all civil cases." The amendment does not conflict with or change the rule embodied in the former section, nor was it intended to change the rule which the Supreme Court had always applied in criminal cases, but the amendment was made in a concise form so that the rule in criminal cases would accompany the rule in civil cases and be embodied in the same section of the rules of the superior courts, established by the judges in convention, and could be easily codified in the same section.

A clear statement and an explanation of the rule, as it related to the argument of law and facts in criminal cases, was made by Judge Lamar, speaking for the court in Cribb v.State, 118 Ga. 316 (9) (45 S.E. 396) (decided August 11, 1903), as follows: "In a criminal case counsel may read law to a jury with so much of the facts stated in an opinion as may be necessary to illustrate the principle ruled." "Evidence which in one case produced a given result can afford no guide to a jury on the trial of another. A verdict in one case is no standard of what should be done on what may be argued to be a similar case. But while this is true, counsel have the right in a criminal case to read the law to the jury and comment thereon. Of course, for the purpose of making the application, it is frequently necessary to read the facts stated in the opinion, or contained in the report; and wherever they are read for the purpose of making clear the principle decided, it is entirely proper to read them, as well as the opinion. Of course, the jury must find their verdict on evidence produced for their consideration, and are not to be governed by what other juries have done, or other courts have decided in another case." See, in this connection, Clark v. State, 8 Ga. App. 757 (2) (70 S.E. 90); Johnson v. State, 46 Ga. App. 776 (169 S.E. 321). However, since it appears from the assignments of error in the instant case that one of the purposes of reading the evidence to the jury in the other cases was to make the verdicts in those cases a standard of what should be done in what might be argued to be similar cases, of which the instant case was one, I think that the assignment of error relative to this matter was meritorious, and I concur in the judgment of reversal.