dissenting.
I dissent, for reason that the opinion of the Court of Appeals sets out the only logical and rational rule which can pertain in a system of law where “[t]he object of all legal investigation is the discovery of truth.” Code Ann. § 38-101.
Any consideration of Code Ann. § 70-207 (a) notwithstanding, this Court is free to formulate that rule of practice which will best serve the ends of justice. “The Supreme Court shall have power to hear and determine cases when sitting in a body, under such regulations as may be prescribed by it.” Ga. Const. § 2-3107. Fuller v. State of Ga., 232 Ga. 581 (208 SE2d 85) (1974). See, generally, Northside Manor v. Vann, 219 Ga. 298 (133 SE2d 32) (1963).
This we have undertaken to do over a period of some years, as is evidenced by Justice Clarke’s discussion in Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980). See also White v. State, 243 Ga. 250 (253 SE2d 694) (1979), all as recognized in the majority opinion.
We have now the concept of induced error (Edwards v. State, 235 Ga. 603 (2) (221 SE2d 28) (1975), and Hill v. State, 237 Ga. 523 (228 SE2d 898) (1976)). There is also the question of waiver velnon, which the majority considers in its opinion, and to which I shall return. There is then the reservation procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), and approved in White v. State, supra.
Relative to the question of waiver, the majority opinion contains a colloquy between court and counsel for both defendants, and concludes that the court’s inquiry (“Did I ball it up in any way there?”) invited objection only to a specified portion of the charge. The necessity of considering the correctness of the majority’s conclusion demonstrates the inadequacies of our three-headed rule. The court said, “I am pretty well satisfied until I got to the verdicts. Did I ball it up in any way there?” We must, therefore, determine the semantic implication of the final word, “there.” Does it refer exclusively to that portion of the charge relative to the form of verdicts? Or is it used to indicate, as an indefinite preposition, the entire charge? The question can only be answered, in all likelihood, by knowing the emphasis placed upon the word by the court at the time of its enunciation. For example, if the court stressed the final word “Did I ball it up in any way there?”, it might reasonably be supposed to apply to the verdicts. However, if the court placed no emphasis upon the word, tossing it in somewhat as an afterthought as is frequent in Southern speech (e.g., “Hey, there”), his inquiry would *839likely include the entire charge. It is thus seen that the question of waiver vel non is almost impossible to determine with any degree of certainty. The present case is strong evidence of that.
Nor is there any reason, in law or logic, to continue our present rule.
The theory of a trial is that a judge will correctly educate jurors in applicable principles of law, which they will apply to the facts as found by them, and reach a verdict that speaks the truth. The function of the judge is adequately and correctly to instruct the jurors. The function of counsel is to represent their clients’ interest in seeing the judge perform that function.
Nothing in law or logic would countenance the present system, wherein counsel, fully knowledgeable of an error in the charge, might evade the court’s inquiry as to exceptions by repeating a magic formula which includes elements of reservation of rights.
In the first place, that rule is part of a sporting theory of justice, which thoughtful lawmakers and jurists have long ago abandoned. Secondly, it may very well be a disservice to a client to withhold comment upon an error, when such an error left uncorrected might be harmful to a client’s chances before a jury. Third, that practice further engenders the prolixity and casuistry of the law which have so discredited the criminal justice system. Fourth, the practice generates appeals and habeas corpus applications by providing yet another vehicle for post-conviction quarrels which should be disposed of at the trial level.
An orderly, efficient and fair practice needs a simple, common-sense rule relative to exceptions to the charge. I suggest that it should be simply this: Where the trial court clearly extends to counsel an opportunity to present any matters relative to the sufficiency and correctness of the charge, no claimed error will be reviewed on appeal unless it shall then and there fairly be raised by counsel.