1. It is reversible error for the court, in a criminal case, to permit counsel in their argument to read to the jury recitals of fact or the reasoning of the Court of Appeals or the Supreme Court as applied thereto.
2. Under the record of this case, it was reversible error to permit the State's counsel, over objection, to read to the jury recitals of fact and reasoning of the appellate courts in decisions rendered. And this right was not waived by the fact that no renewed objection was made at the time of such argument by the State's attorney, and was not waived because an attorney for the accused likewise engaged in such improper and erroneous argument on behalf of the accused.
DECIDED SEPTEMBER 28, 1945. REHEARING DENIED DECEMBER 10, 1945. The defendant was convicted of assault with intent to rape. He filed his motion for a new trial on the general grounds, and added three special grounds. After consideration, we feel constrained to reverse the case because of the errors assigned in special ground 1. In view of the whole record, the other special grounds do not require a reversal. Since the case is to be returned for retrial, we do not pass upon the general grounds.
For a clear understanding of special ground 1 and a better understanding of our reasons for reversing the case on this ground, we quote it and the certificate of the judge pertaining to the overruling *Page 294 thereof as follows: "Movant alleges the court erred, in this, to wit: The accused introduced evidence, and the State of Georgia had the right to make the opening argument and the concluding argument. The Honorable M. H. Boyer, solicitor-general of the Oconee circuit, made the opening argument for the State, and in his argument cited no decisions of the Court of Appeals or of the Supreme Court of Georgia, or any other law or authorities on which the State relied, or which the State intended to cite to the court or argue during the State's argument. Upon the conclusion of the State's opening argument, made by Hon. M. H. Boyer, aforesaid, the opening argument for the accused was made by T. A. Jacobs Jr., and in this argument said counsel for the accused consumed one-half the time allotted for argument, to wit, thirty minutes. Upon the conclusion of the opening argument for the accused so made by T. A. Jacobs Jr., the Hon. Charles H. Garrett, solicitor-general of the Macon circuit, who was to conclude for the State, stated to the court that the State intended to cite and rely upon, and argue, the cases of Gray v.State, 6 Ga. App. 428 (4); Brittain v. State, 41 Ga. App. 577; Jones v. State, 46 Ga. App. 679; and Davis v.State, 46 Ga. App. 732. The solicitor-general did not read the cases to the court, or state what legal principle, decided in said cases, he intended to urge, but merely said he expected to read the above-cited cases in his concluding argument. When this statement was made, counsel for the accused objected to the solicitor-general reading these cases in his concluding argument, and arguing the facts of these cases in conclusion and arguing that the facts of the cases cited were similar to the facts of this case, and that verdicts of assault with intent to rape had been upheld by the Court of Appeals in the cases cited. Counsel for the accused objected because the decisions were not cited in the opening argument for the State, and it was too late, after the opening argument of the State had been concluded, to allow the solicitor-general to cite cases he intended to refer to in his argument, no notice of the cases having been given in the State's opening argument, and the cases not having been read to the court in the opening argument, so that accused's counsel would have a full opportunity to discuss the legal questions decided in said cases. The court ruled against accused's objection, and ruled that the solicitor-general might *Page 295 cite the cases to accused's counsel in this manner, that is, by reference to the case and volume and page number in which it was reported. The court did state that the court would allow accused's counsel to consider the cases the solicitor-general cited, above set out, and for either one or more of the counsel for the accused to make such observations as counsel saw fit relative to the cases cited, without charging that time against counsel for the accused. Counsel for the accused then urged the objection that he merely cited the authorities without letting counsel for the accused know what part of the decisions he was going to insist upon or his view of the construction of the law. All the objections so made by counsel for the accused were overruled. Thereafter, in the concluding argument for the State, made by the Hon. Chas. H. Garrett, solicitor-general of the Macon Circuit, the said cases, that is, Gray v. State, 6 Ga. App. 428 (4); Brittain v. State, 41 Ga. App. 577; Jones v.State, 46 Ga. App. 679; and Davis v. State, 46 Ga. App. 732, were read and discussed to the jury by the Hon. Chas. H. Garrett, over the objection of the accused, hereinbefore recited, and counsel for the State read the facts of the reported cases, and also the fact that the Court of Appeals had decided as matter of law that assault with intent to rape was proved under the facts of the reported cases; and also was allowed to argue that the facts of the case being tried were similar to the facts in the reported cases, and that assault with intent to rape was proven under the facts of the case being tried, considered in the light of the convictions affirmed by the Court of Appeals in the cases cited and read, in which the facts were argued to be similar, and no stronger than the facts of the case of accused, being tried.
"Movant avers that the court erred in this ruling and erred in allowing the solicitor-general in his concluding argument to read the cited cases, and the verdict and judgment of the court in said cases, and argue as to the similarity of the facts of the case of this accused, to the facts in the decisions cited, in which convictions of assault with intent to rape had been affirmed. Movant says that his objections made to these cases being read and argued in conclusion, when not read and discussed in opening, [were] good, and the court erred in overruling said objections made when the cases were not cited and read in the opening argument of the *Page 296 State, should have been sustained, and it was error to allow the solicitor to read and discuss the facts of the reported cases, so cited, in the concluding argument of the State. Movant alleges that at the time objection was made to the State being allowed to read the cases herein referred to, as cited by the State in its concluding argument, the court was advised that, had the cases been read or referred to in the opening argument of the State, that counsel for the accused, making the opening argument for the accused, to wit, T. A. Jacobs Jr., would have read and cited to the court, in reply to the principle ruled in the cases cited by the State, the rulings made in following cases, to wit: Dorsey v. State, 108 Ga. 477; Green v. State 42 Ga. App. 437;Pauldo v. State, 29 Ga. App. 389; Johnson v. State,63 Ga. 355, 356; Gaskin v. State, 105 Ga. 631; Joice v.State, 53 Ga. 50; Nichols v. State, 72 Ga. 191;Godboult v. State, 38 Ga. App. 137; Pickett v. State,53 Ga. App. 478; Scott v. State, 63 Ga. App. 353;Borders v. State, 61 Ga. App. 573. Movant alleges that, not being put on notice that the State intended to cite Brittain v.State, 41 Ga. App. 577; Jones v. State, 46 Ga. App. 679; and Davis v. State, 46 Ga. App. 732, counsel for the accused did not cite said cases or read from them in his argument. Counsel for the accused, had the State in its opening argument cited or read from the cases herein enumerated above, would have discussed the cases cited by the State, in the light of the rulings made in the Dorsey case, Green case, Pauldo case, Johnson case, Gaskin case, Joice case, Nichols case, Godboult case, Pickett case, Scott case, andBorders case, herein cited by name and report and page where found, and movant says, for this reason, it was error for the court to rule and decide the State might argue from the cases cited by the State, although no notice of such intention was given by the State in its opening argument. Movant says that the ruling and decision of the court allowing the State to cite and read from and argue the authorities cited by the State in its concluding argument was error and prejudicial, because: (a) Under the law any decisions or authorities or legal principles insisted upon must be read and cited in the opening argument, before accused has begun his argument. (b) Under the law, if any decision is relied upon, the facts of the decision sufficient to illustrate the legal principle contended for must be read, and it is not proper to *Page 297 merely cite the name of the case and the citation to the report by volume and page number. (c) It is error to allow counsel for the State to read to the jury, in his concluding argument, the facts of reported cases, and argue from such decisions that the accused is guilty. It is error to read the facts of reported cases, and that a conviction was had, which was affirmed by the appellate court, and then to argue that the facts of the case under investigation are similar to the facts of the adjudicated case, and therefore as a matter of law the facts of the case being tried demand a conviction. (d) It was error for the court in this case to allow the solicitor-general in his concluding argument to read from decisions of the Court of Appeals the facts of decided cases, for the purpose of comparing the testimony in the decided cases with the facts of accused's case being tried. This was particularly prejudicial in this case, because no notice of such intention to argue the decided cases was given in the State's opening argument. Movant alleges that the gravity and prejudicial effect of the court's ruling, herein complained of, is reflected in the fact that after the jury had considered the case for several hours, being unable to reach a verdict, the jury requested that some of the decisions be reread to them, or the jury allowed to have the decisions to read themselves in the jury room. The following occurred in this respect after the jury had considered the case for several hours without reaching a verdict: The jury being brought into open court, the following occurred. The Court: The court is in receipt of your communication in which you suggest that you would like to have some additional help or information. The case has been closed, the arguments have been completed, but the court wants to make this statement — if there is any question of law in this case with which you are concerned and on which you are not fully satisfied on the charge of the court, if you will address to the court your request for the court to charge on the question that you are concerned with, the court will try to comply with your request if he can. Is there some question of law with which you are troubled?
"Foreman: Yes, sir.
"The Court: Is there any charge of the law that can help you in the arrival at a conclusion, any charge that the court can give you that will be of assistance to you, then the court wants to do *Page 298 so. The court, of course, can not and would not instruct you as to any question of fact, as that would be highly improper for the court to do.
"Foreman: Some of the jurors asked for that information we had in the note to be read to them or to have the books to read themselves and that is the reason we wrote the note.
"The Court: The argument has been completed. Do any of you gentlemen on the jury have a question of law that you would like for me to give you?
"Juror: During the course of the argument yesterday afternoon there were conflicting decisions read, as to just what the law was as related to what constitutes an intent. Just how far a person has to go before the intent would be presumed; where they held in one case, as I recall, a person was knocked off a foot-log and the assailant fled, and, as I understand it, the higher courts upheld the decision in that case.
"The Court: Do you think it would materially assist you or the jury if the court would give you in charge the law on assault with intent to rape?
"Juror: Yes, sir, I think it would.
"The Court: Is that all the law your question is directed to?
"Answer: Yes, sir.
"The Court: To convict of assault with intent to rape, the jury must find beyond a reasonable doubt that an assault was made, that an assault was made with intent to rape, and that some attempt was made to have carnal knowledge forcibly and against the will of the female. Even though you find an assault was made, but you are not convinced beyond a reasonable doubt that an assault was made with intent to rape, rather than attempt to rob, or an attempt to kill, or merely an assault to frighten the female, you can not convict of assault with intent to rape. If the evidence in the case does not show beyond a reasonable doubt that an attempt was made to rape the alleged female, forcibly and against her will, then you could not convict of assault with intent to rape. An assault with intent to rape is an assault upon a female with intent to have carnal knowledge of her, forcibly and against her will. Before you would be authorized to find the defendant guilty of the offense of assault with intent to rape, the evidence must show beyond a reasonable doubt that an assault was made by this defendant; *Page 299 that at the time the assault was made it was the defendant's intention to have carnal knowledge of the female charged to have been assaulted; and that it was his purpose to carry such intention into effect with force and against her will. If any one of these things is not shown beyond a reasonable doubt, the offense of assault with intent to rape would not be made out.
"The Court: I have undertaken to give you in charge the law on assault with intent to rape. I hope that answers your question. Is there any other question that any of you gentlemen would like to propound to the court? Is there any question on the lesser offense of assault and battery that you gentlemen need, any further instructions? If so, you may so indicate.
"The Court: You may retire.
"Movant assigns error on the charge as above given, because assault with intent to rape is not shown unless there is some overt act, that is, some attempt to have carnal knowledge forcibly and against the will of the female. The mere intent to rape without some overt act, that is, some attempt to carry into execution such intent, does not make the offense of assault with intent to rape. Movant says that for all the grounds and reasons urged and set out herein, the court erred in making the ruling and judgment complained of, allowing the State to cite and read the facts of reported cases, which were not read or cited in opening.
"Movant says it was error to allow the solicitor-general to read the facts of the reported cases, herein mentioned, and argue to the jury that convictions of assault with intent to rape were affirmed in those cases, and urge upon the jury the similarity of the facts in the reported cases to the facts of the case of this accused.
"The vice and error in such practice is reflected in the request by the jury of a re-charge, and the request that the conflicting decisions on similar facts be reread, or the jury allowed to read the decisions themselves. It will be seen that this jury undertook to recall the facts in a decision read, and measure this case, by a decision of the Court of Appeals on the facts of that case, as the jury recalled the case.
"Movant says it is error to allow the facts of a reported case and the judgment of the court in that case made known to the jury, and in this way argue to the jury that the facts of the case being tried make it a parallel case to the one affirmed by the Court of Appeals. *Page 300
"Movant says, when the request was made that the cases be read so the jury might harmonize and reconcile the apparent conflicting decisions, the court erred in not allowing counsel for the accused to read to the jury such cases as counsel advised the court would have been read and cited, had the State given notice it intended to read any decisions, or the facts of reported cases, in the State's opening argument.
"Movant further says the court erred in stating the law applicable to assault with intent to rape in the recharge, by failing to instruct the jury there must be some effort or attempt to carry into effect the intent to have carnal knowledge forcibly and against the will of the female."
The trial judge's note reads as follows: "I do certify that the foregoing grounds of the amendment are true and correct, and the amended motion for new trial is allowed, and the grounds thereof approved as true and correct. As to ground 1 of the amended motion for new trial, I certify, in addition to the facts stated in the motion, the following facts: After the ruling complained of in ground 1 of the amendment, a second argument was made for the defendant by Mr. D.C. Chalker, of the Hawkinsville bar; thereafter, the third member of defendant's counsel, Mr. W. A. Wooten, of the Eastman bar, devoted ten minutes to a discussion of the authority of Gray v. State, 6 Ga. App. 428 (4), which had been cited by the solicitor-general, and twelve minutes to a discussion of the authority of Pickett v.State, 53 Ga. App. 478, cited by the defendant's counsel, as responding to citations by the solicitor-general. This twenty-two minutes was not charged by the court against the time allotted for argument to defendant's counsel." 1. The Code, § 24-106, reads: "The rules of the respective courts, legally adopted and not in conflict with the constitution of the United States or of this State, or the laws thereof, are binding and must be observed."
The Code, § 24-2628, provides: "The several judges of the superior courts may convene at the seat of government once in each year, at such time as they, or a majority of them, may appoint, for the purpose of establishing uniform rules of practice throughout *Page 301 the several circuits; which rules, so established, shall be published immediately after the adjournment of said convention. (Act 1821, Cobb, 460.)" And § 24-2629, in conjunction therewith, provides: "All rules of practice for the superior courts, prescribed by any other authority than that which has, by the preceding section, been deputed to all the judges of the superior courts in convention, shall be null and void and inoperative. (Act 1847, Cobb, 461.)" Rule 2 of the superior courts (Code, § 24-3302) reads: "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 or the reasoning of the court as applied thereto, in decisions by the Supreme Court or Court of Appeals." The last sentence in the above-quoted Code section was added by amendment of the judges in assembly on July 2, 1924. The convention of judges had power to amend this rule. See Snipes v. Parker,98 Ga. 522 (25 S.E. 580).
In Wilson v. State, 33 Ga. 207, 215, the Supreme Court, in commenting upon the wisdom of the legislature in delegating to the judges the authority to make uniform rules of procedure, had this to say: "We think this discretion was wisely and properly reposed. It was not reposed in each judge, severally, to be exercised in the circuit in which he had been specially elected, but in a convention of all the judges, bringing together their wisdom and experience separately acquired, a discretion to be exercised by the majority for the government of all and each. It was manifestly the intention of the legislature, that each judge should conform to the rules of practice thus established, whether they chanced to meet his approval or not, otherwise one great object distinctly stated in the act, `the establishment of uniform rules of practice in the several circuits,' must fail."
By an act of the legislature approved December 24, 1821 (Cobb's Digest 460), the judges of the superior courts of this State were authorized to pass rules of practice and procedure with the binding effect of statutes. The unhampered exercise of this authority was not disturbed until after a convention of the judges in Atlanta, Georgia, on December 4, 1936. At this convention, a new set of *Page 302 rules was adopted to become effective January 1, 1937. These new rules not only included therein the rules in effect at the time of this convention, but adopted several new rules. Most, if not all, of these new rules were considered so objectionable to the members of the General Assembly that when they met at the next session thereafter they repealed the authority of the superior court judges to adopt rules in convention as provided in the Code, § 24-106, and enacted a provision in lieu thereof that no rule passed by the judges in convention should become effective unless approved by a legislative act. Ga. L. 1937, p. 464. In other words, the judges might meet as theretofore authorized and make such recommendations to the legislature as to rules of practice and procedure, but such rules would not become effective unless approved by the General Assembly. The same act repealed the objectionable rules passed by the assembly of judges in 1936, as will be seen by reference to the act, but left of force the rule now under consideration as it is now contained in the supplement to the annotated Code, § 24-3319 (the old rule being contained in Code, § 24-3302). It will thus be seen that the effect of the act of 1937, supra, was to leave of force the rules then in effect which the legislature did not specifically repeal. The effect of the act on the rules was prospective and not retrospective. It thus seems clear that, in a criminal case, "counsel shall not be permitted, in the argument . . to read to the jury recitals of fact or the reasoning of the court as applied thereto, in decisions by the Supreme Court or the Court of Appeals." From the recitals of fact in the special ground now under consideration, it can not be doubted that this rule was violated and was prejudicial and harmful to the accused. This is made manifest by the request of the jury, after several hours deliberation, to have reiterated to them the conflicting facts in other cases so that they might apply the reasoning of the appellate courts under the facts of the other cases to arrive at the guilt or innocence of the defendant under the facts of the case on trial, or to be permitted to have the volumes of the reports which contained such facts in such other cases so that they might themselves read them in order to get a clear understanding of their duty under the facts of the case then on trial.
2. The only remaining question to be considered is: Was the objection by counsel for the accused timely made, and were the *Page 303 rights of the accused as to the benefits and provisions of this rule waived by the failure to make proper objection to the argument of State's counsel? Properly construed, the special ground now under consideration, together with the judge's note thereon, contains two specific objections: first, that the authorities upon which the State relied were not submitted before the argument for the defendant began; and second, the court permitted the recital of facts and the reasoning of the appellate courts in decisions to be read to the jury. With regard to the first of these, we are sure that the court did not commit substantial and prejudicial error. As to this feature, the judge permitted counsel for the defendant additional time in which to reply to the argument of the State as to the cases cited by the State. In Fort v. State, 3 Ga. App. 448 (2) (60 S.E. 282), this court said: "While the party who is entitled to the concluding argument should be required to state to his adversary, before he addresses the jury, the questions of law that he will make in the case, and read or present to him the authorities which he expects to use, this rule does not apply when the only question in the case is one of fact, and there is no controversy as to the law. But the refusal of the court to require the party, before he concludes the argument, to state his points of law, or authorities in support thereof, is no ground for a new trial. The proper practice would be to ask leave to reply to questions of law not presented except in the concluding argument."
Let us now discuss the second objection. When the State's counsel who was to make the concluding argument submitted the authorities which he would discuss in conclusion, counsel for the defendant objected to the court's permitting counsel in conclusion to read the facts in those cases to the jury or in the presence and hearing of the jury; and a number of cases were then called to the attention of the court, containing recitals of fact beneficial to the defendant in comparison with the facts of the case then on trial. In reply to this objection, the judge ruled that he would permit counsel for the defendant such additional time as was necessary to reply to the argument of the State relative to the cited cases. Nevertheless, the court did permit State's counsel to read the facts of those cases to or in the hearing of the jury and to argue their similarity to the facts of the case on trial; and nevertheless, as the court recites in the note overruling this ground, counsel for *Page 304 the accused spent several minutes presumably discussing the facts in a case cited by counsel for the State as well as one of the cases called to the attention of the court under the objection when made. This opening of the gates of erroneous argument to both sides did not prevent a violation of the rule under question or cure the erroneous ruling. On this principle there are numerous cases which by analogy prove the correctness of our view. Our appellate courts in some of those cases have used very strong language of disapproval. In the celebrated case ofWoolfolk v. State, 81 Ga. 551 (8 S.E. 724), the Supreme Court said: "We know of no law allowing offsets of this kind. The admission of illegal testimony on one side will not justify illegal rebutting testimony on the other. `Two wrongs do not make a right.'" Then again in Bennett v. State, 86 Ga. 401 (12 S.E. 806, 12 L.R.A. 449, 22 Am. St. Rep. 465), the court said: "To hold that because counsel on one side violates a rule of court in his address to the jury by making statements outside of the evidence, the opposing counsel has the right to would be to turn a court, where justice should be administered according to the rules of evidence and of law, into a town-meeting." In the same decision (page 407), it was said: "In doing this, I am sure that it is scarcely necessary to say that we disclaim any purpose of inflicting a personal censure upon the able and upright judge who presided in the cause, or upon the counsel and the prosecuting officer. If no other reason existed for this disclaimer (and there are many), sufficient reason would be found in the usage of our courts, which has gone very far to sanction the habit referred to. Its practical tendency is bad upon the court, the bar, and the jury. If this were all, perhaps our duty would stop with the expression of such an opinion; but this is not all, for in our judgment it is violative of the rights of the citizen litigant in the courts of justice; and if so, we are not at liberty to stop short of making it cause for a new trial." But it is contended that — even though counsel had objected to counsel for the State reading the recitals of facts in the cases at the time they were submitted, and received an adverse ruling from the court — counsel for the defendant should have again made this same objection at the time counsel for the State was arguing this recital of facts in the cases cited and was drawing therefrom similarities to the facts in the case on trial. *Page 305 We do not think that it was incumbent upon counsel for the defendant, if indeed it could be said to have been proper for them, to invoke again a ruling of the court on a question which the court had already ruled adversely to the accused. Code § 24-3306, rule 6 (now § 24-3323, rule 23 of the supplement to the annotated Code), provides: "No attorney shall ever attempt to argue or explain a case, after having been fully heard, and the opinion of the court has been pronounced, on pain of being considered in contempt." There are many other decisions which we might cite as analogous, but we will call attention to only a few others. In Hill v. State, 41 Ga. 484, the court said: "And the law clothes the circuit judges with the highest and most sacred powers; and in all cases, both civil and criminal, it is not only their prerogative right but official duty to watch the progress of the trials before them, and see that the laws are enforced without restraint." Also, in Kelly v. Strouse,116 Ga. 872 (8-a) (43 S.E. 280), the court said: "While it is the duty of counsel to protect the client from wrong and injustice, it is much more the duty of the judge to save the law from being outraged. Neither the laches of the litigant nor the negligence of counsel will absolve the judge from his sworn obligation to administer the law." See also Augusta Summerville R. Co. v. Randall, 85 Ga. 297 (6) (11 S.E. 706); Grady v. State, 11 Ga. 253 (3). In the instant case, however, notwithstanding the quotations from our Supreme Court contained in the cases cited, we feel that counsel for the defendant in error made a timely and proper objection to the court's permitting counsel for the State to read in the presence of the jury the recitals of facts in the criminal cases and the reasoning of the appellate courts in connection therewith.
The court erred in overruling the motion for a new trial, for the reasons set out in special ground 1.
Judgment reversed. Broyles, C. J., concurs.