Scott v. State

¶1dissenting. That instructions to the jury of the nature indicated in the excerpt from the charge quoted in the opinion in chief are not to be commended; that the judge should not state or summarize the individual or particular facts appearing in the proof of either party, even though he does not present them as' facts proved but as contentions; that, if challenged by an appropriate specific assignment of error, certain portions of the charge.in this ease could not be successfully defended, I do not gainsay. That the defendant is guilty; that even under his own testimony he would probably have been convicted; that another trial will reach the same result as the one already had, none of us seriousty doubt. That the grounds of the motion for a new trial *76in which the attack on the charge is made do not themselves contain that element of completeness, which, under repeated rulings of the Supreme Court, is a prerequisite to their consideration here, can not be questioned. I agree with my brethren of the bench that these precedents have established a rule too technical, more technical, indeed, than the law ever intended. However, I do not recognize any right or ’power on our part to break away from or to reverse these precedents; and if I ever intentionally consent to disregard them, it will be to keep some defendant, whom we believe to be innocent, from suffering an unjust sentence, not to give one whose guilt admits of little doubt another chance to escape condign punishment. The portion of the charge upon which the majority of the court rests the judgment of reversal is nowhere set forth, mentioned, or pointed out in the motion for new trial, but has been extracted by the patience of my brother Bussell from the entire charge which appears in the record. The ground of the motion for a new trial in which the question is sought to be raised is but a scattering fusillade directed against the charge as a whole. The exception as taken is that the charge summarizes and stresses the contentions of the State without presenting a corresponding summary of the defendant’s contentions. By what portions of the charge the contentions of the State are unduly stressed is not asserted; what contentions of the defendant were neglected is not stated. The only contention of the- accused which grew out of the evidence .was that the prosecutor had provoked the difficulty by the use of opprobrious words. The court charged fairly, fully, and correctly as to this. He ought not to have particularized the individual contentions of facts made by either party as to the mere details of the quarrel and difficulty under investigation- By going through the entire charge we find that the judge did particularize some of the individual facts proved bj the State; this, I am frank to concede, he ought not to have done; but the exception is not broad enough to raise the question. Bead as a whole, especially in connection with the brief of the evidence, the charge is very much fairer to the defendant than the isolated excerpt quoted in the majority opinion seems to indicate. For these reasons I dissent.