(Ga. L. 1860, p. 42, §§ 1, 2; Code 1863, §§ 240, 241; Code 1868, §§ 234, 235; Code 1873, §§ 244, 245; Ga. L. 1877, p. 13, § 1; Ga. L. 1878-79, p. 150, § 1; Code 1882, §§ 244, 245; Civil Code 1895, §§ 4318, 4319; Penal Code 1895, §§ 1030, 1031; Ga. L. 1897, p. 41, § 1; Civil Code 1910, §§ 4847, 4848; Penal Code 1910, §§ 1056, 1057; Code 1933, §§ 81-1102, 81-1103; Ga. L. 1943, p. 262, § 1; Ga. L. 1982, p. 3, § 9; Ga. L. 1983, p. 884, § 3-3; Ga. L. 1986, p. 320, § 1.)
Cross references.- Corresponding provision relating to criminal procedure, § 17-8-56.
Editor's notes.- Ga. L. 1986, p. 320, § 2, not codified by the General Assembly, provided that that Act would apply to actions pending on July 1, 1986, as well as to actions initiated on or after that date.
Law reviews.- For article discussing importance of charge of the court, see 7 Ga. B.J. 34 (1944). For annual survey of trial practice and procedure, see 38 Mercer L. Rev. 383 (1986).
JUDICIAL DECISIONS
Object of this section is to preserve a sure memorandum of what was actually charged. Wheatley & Co. v. West, 61 Ga. 401 (1878) (see O.C.G.A. § 9-10-5).
Object of this section is to prevent misunderstanding between the trial court and counsel as to what was the charge; and the only way to prevent such disputes from arising is to require the trial judge to conform strictly to this statute. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev'd on other grounds, 182 Ga. 252, 185 S.E. 246 (1936) (see O.C.G.A. § 9-10-5).
This section is mandatory, and it is error for presiding judge to fail to comply therewith when properly requested so to do. Dixon v. Evans, 56 Ga. App. 583, 193 S.E. 470 (1937) (see O.C.G.A. § 9-10-5).
Requirement as to the giving of a charge in writing by the court, when properly requested by counsel for either side, is mandatory in its terms, and the court cannot refuse to do so when requested. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev'd on other grounds, 182 Ga. 252, 185 S.E. 246 (1936).
Judge may direct a verdict, without complying with this section. Geer v. Dancer, 148 Ga. 465, 97 S.E. 406 (1918) (see O.C.G.A. § 9-10-5).
The request for a written charge must be made before the commencement of the argument to the jury. Gray v. Obear, 54 Ga. 231 (1875); Ashley-Price Lumber Co. v. Henry, 23 Ga. App. 93, 98 S.E. 185 (1918).
An oral request for a written charge will suffice. Citizens Bank v. Fort, 15 Ga. App. 427, 83 S.E. 678 (1914).
Required elements of request to charge jury.
- A request to charge the jury, directed to the trial judge and submitted in writing before the retirement of the jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence of the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge. New York Life Ins. Co. v. Thompson, 50 Ga. App. 413, 178 S.E. 389 (1935).
All modifications in a charge, or request to charge, must be reduced to writing. City Bank v. Kent, 57 Ga. 283 (1876); Fields v. Carlton, 75 Ga. 554 (1885).
Oral explanation of ambiguity in charge no ground for new trial.
- Although the court was requested to deliver a written charge, where counsel verbally called attention to an ambiguity, asked its correction, and assented to an oral explanation, that it was so given is no ground for a new trial. Continental Nat'l Bank v. Folsom, 67 Ga. 624 (1881).
Effect of oral request for additional charge on right to have general charge written out.
- Where counsel for either party, who has duly requested the court for a written charge, orally requests the court to deliver a certain additional instruction, and the court thereupon orally instructs the jury along the line requested, such request does not constitute a waiver on the part of such party of the party's right to have the general charge of the court written out and read to the jury, but it does constitute a waiver on the part of such party of the party's right to have such oral request written out, and it is not error for the court to orally charge the jury along the line suggested by such oral request. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev'd on other grounds, 182 Ga. 252, 185 S.E. 246 (1936).
It is error for trial judge to refuse timely and proper request to write out charge and read it to jury, and such error may be complained of in a direct bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50), without a motion for a new trial, where it is shown that the verdict was not demanded. Boykin v. McRae, 182 Ga. 252, 185 S.E. 246 (1936).
Request that trial judge write out charge and read it to jury may be subsequently waived, and in such case there would be no error in refusing it. Boykin v. McRae, 182 Ga. 252, 185 S.E. 246 (1936).
Judge should take a recess, if necessary, to secure time to write out the judge's charges. Homer v. State, 6 Ga. App. 667, 65 S.E. 701 (1909).
Judge not required to charge jury concerning provisions of law not at issue.
- The trial judge is not required to include in charge provisions of law about which there is no issue. Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330, 155 S.E. 321 (1930).
What any juror of ordinary capacity would certainly know, need not be delivered as part of the charge of the court. Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330, 155 S.E. 321 (1930).
Error for court to refuse specific charge as requested although covered by other instructions.
- A specific charge, which is adjusted to a distinct matter in issue involving the right of the plaintiff to recover, and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other instructions given by the court, and it is error for the court not to do so. City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933).
Failure of the judge to comply with this section will require grant of a new trial, with the request that the judge reduce the judge's charges to writing conclusively presumed to have been met where the complaint is that this section was violated, unless affirmative proof to the contrary appears. Forrester v. Cocke, 6 Ga. App. 829, 65 S.E. 1063 (1909); Ashley-Price Lumber Co. v. Henry, 23 Ga. App. 93, 98 S.E. 185 (1918) (see O.C.G.A. § 9-10-5).
RESEARCH REFERENCES
Am. Jur. 2d.
- 75A Am. Jur. 2d, Trial, § 1077 et seq.
C.J.S.- 89 C.J.S., Trial, §§ 484, 485, 608 et seq.
ALR.
- Use of emphatic words, like "great care," "utmost care," or "highest care," in instructing jury as to duty of carrier to passengers, 32 A.L.R. 1190.
Instructions regarding measurement of damages for pain and suffering, 85 A.L.R. 1010.
Right or duty of court to instruct jury as to presumptions, 103 A.L.R. 126.
Instructions regarding good or bad character of witnesses as affecting their credibility, 120 A.L.R. 1442.
Propriety of instruction, or requested instruction, in civil case, as to caution in considering testimony of oral admissions, or as to weight of such admissions as evidence, 126 A.L.R. 66.
Propriety of instructions on matters of common knowledge, 144 A.L.R. 932.
Malpractice: propriety and effect of instruction or argument directing attention to injury to defendant's professional reputation or standing, 74 A.L.R.2d 662.
Necessity and propriety of instruction as to prima facie speed limit, 87 A.L.R.2d 539.
Propriety and prejudicial effect of instructions referring to the degree or percentage of contributory negligence necessary to bar recovery, 87 A.L.R.2d 1391.
Provision in Rule 51, Federal Rules of Civil Procedure, and similar state rules and statutes, requiring court to inform counsel, prior to argument to jury, of its proposed action upon requests for instructions, 91 A.L.R.2d 836.
Instruction as to possible effect of verdict on insurance rates as prejudicial error, 100 A.L.R.2d 345.
Propriety and effect, in eminent domain proceedings, of instructions to the jury as to landowner's unwillingness to sell property, 20 A.L.R.3d 1081.
Verdict urging instructions in civil case stressing desirability and importance of agreement, 38 A.L.R.3d 1281.
Construction of statutes or rules making mandatory the use of pattern or uniform approved jury instructions, 49 A.L.R.3d 128.
Necessity and propriety of instructing on alternative theories of negligence or breach of warranty, where instruction on strict liability in tort is given in products liability case, 52 A.L.R.3d 101.