O'Berry v. State

• Decision Date: 16 June 1922
• Docket Number: 2774.
• Citation: 113 S.E. 2,153 Ga. 644
• Parties: O'BERRY v. STATE.
• Court: Georgia Supreme Court

113 S.E. 2

153 Ga. 644

O'BERRY v. STATE.

No. 2774.

Supreme Court of Georgia

June 16, 1922

Syllabus by the Court.

A juror in a criminal case who is related, by blood or marriage within the ninth degree to the prosecutor, ascertained according to the rules of the civil law, is a disqualified juror; and such disqualification of a juror, unknown to the defendant or his counsel until after verdict, or which could not have been ascertained by either of them before verdict by the exercise of due diligence, is cause for a new trial. Crawley v. State, 151 Ga. 818, 108 S.E. 238; Merritt v. State, 152 Ga. 405, 110 S.E. 160.

(a) Descendants of a brother and sister, such as the great-great-grandson of one and the great-grandson of the other, are related to each other in the ninth degree according to the rules of the civil law.

Where one contributes to a fund to be used in employing an attorney to aid the solicitor general in the prosecution of a particular person for an alleged offense with which he is charged, and the attorney does render such aid upon the trial of the case, the person so contributing is to be considered as a volunteer prosecutor. Lyens v. State, 133 Ga 587 (4), 66 S.E. 792.

Where the relationship between a volunteer prosecutor and juror, in the degree indicated in the first headnote, is by blood illegitimacy on the maternal side of one of the ancestors of the prosecutor will not prevent disqualification of the juror.

The grounds of the motion for new trial complaining of certain excerpts from the charge of the court show no cause for reversal for any reason assigned.

When considered in connection with the charge as to the law of circumstantial evidence, the ground of the motion for new trial based on alleged omission to charge on that subject more elaborately, without a timely written request therefor affords no cause for reversal.

Due diligence having been shown, it was erroneous to refuse a new trial, on the ground of newly discovered evidence as to disqualification of the juror.

Error from Superior Court, Appling County; J. P. Highsmith, Judge.

Elvira O'Berry was convicted of murder, and she brings error. Reversed.

Wade H. Watson and Vernon E. Padgett, both of Baxley, for plaintiff in error.

A. V. Sellers, Sol. Gen., and C. H. Parker, both of Baxley, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

ATKINSON J.

The ruling announced in headnotes 1, 2, 4, 5, and 6 do not require elaboration.

Of the rulings announced in the headnotes, that embraced in the third is the only one that will be elaborated. As ruled in the first note, the decisions of this court hold that "relationship by blood or marriage within the ninth degree, calculated according to the rules of the civil law, between the prosecutor and a juror in a criminal case, will disqualify the juror." It is declared in the Civil Code, § 3028:

"The mother of a bastard is entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal power."

In section 3029, it is declared:

"Bastards have no inheritable blood, except that given to them by express law. They may inherit from their mother, and from each other, children of the same mother, in the same manner as if

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