Worthy v. State

Bussell, Chief Justice,

dissenting. After a careful consideration of the record, I am firmly convinced that the plaintiff in error is entitled to a trial, which he has not had; a fair and impartial trial under the laws of Georgia. I therefore think that the court erred in refusing the motion to declare a mistrial. I am also of the opinion that the evidence is insufficient to prove the guilt of the accused beyond a reasonable doubt. The various circumstances which are relied upon by the State would most of them apply to any person of similar size physically to the ac*408cused. As was said by Mr. Justice Lamar in Patton v. State, 117 Ga. 230, 238 (43 S. E. 533) : “Such things ought not to occur. Where possible, they should be nipped in the bud before they have had time to ripen into damage. It is not necessary to wait for either party to object. The court itself has an interest. The public has an interest, and it is a high privilege which the judge has to act on his own motion. Civil Code, § 4419; Augusta & Summerville R. Co. v. Randall, 85 Ga. 297, 319 (11 S. E. 706); Farmer v. State, 91 Ga. 720 (18 S. E. 987). Where the court acts without being asked, the remedy is far more effective, and in most cases will undo what has been improperly done. Such promptitude will generally obviate the necessity of declaring a mistrial.”