649 S.E.2d 793 (Ga.App. 2007), A07A1539, Benton v. State

Docket Nº:A07A1539.
Citation:649 S.E.2d 793, 286 Ga.App. 736
Party Name:BENTON v. The STATE.
Case Date:July 09, 2007
Court:Court of Appeals of Georgia
 
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Page 793

649 S.E.2d 793 (Ga.App. 2007)

286 Ga.App. 736

BENTON

v.

The STATE.

No. A07A1539.

Court of Appeals of Georgia.

July 9, 2007

          Reconsideration Denied July 23, 2007.

          Certiorari Denied Oct. 9, 2007.

Page 794

          Larkin M. Lee , for appellant.

          Richard G. Milam , District Attorney, for appellee.

          BLACKBURN , Presiding Judge.

          Following a jury trial, Donnie Benton appeals his conviction for stalking, contending that the conviction must be reversed because the jury was not sworn. Because the record does not affirmatively show that the jury was not sworn, we find no reversible error.

          In support of his contention, Benton notes that the record does not reflect whether the jury was sworn pursuant to OCGA § 15-12-139 , which requires that the judge or clerk of court administer the oath to the trial jury in every criminal case. A conviction by an unsworn jury is a nullity, Spencer v. State,1 and where it appears affirmatively that the jury was not sworn, a subsequent conviction must be set aside “and the case must be remanded for retrial." Grant v. State2 (conviction set aside where the State conceded that the jury oath was never administered).

          Here, Benton correctly points out that the record fails to show whether the jury was sworn. However, “[t]he courts of this State have consistently held that the [mere] failure of the record to reflect whether the jury is sworn does not [itself] constitute reversible error." Stokes v. State.3 An appellant bears the burden of showing error affirmatively by the record, Williams v. State,4 and “[w]here the transcript does not fully disclose what transpired at trial, it is the duty of the complaining party to have the record completed pursuant to OCGA § 5-6-41 ." Morrison v. State.5 As the record is silent as to whether the jury oath was administered, this court is unable to ascertain whether in fact the jury was not sworn, which would constitute grounds for reversal, or whether instead the court reporter merely failed to record it, which would not be reversible error. See Montford v. State6 (court reporter's failure to transcribe the jury oath

Page 795

was not reversible error; appellant's remedy was to have the record corrected).

          “The presumption exists that the judge discharged all his duties, including the swearing of the jury." Bohin v. State.7 Thus, where the...

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