Blankenship v. State

• Citation: 37 S.E. 732,112 Ga. 402
• Parties: BLANKENSHIP. v. STATE.
• Decision Date: 19 December 1900
• Court: Supreme Court of Georgia

112 Ga. 402

37 S.E. 732

BLANKENSHIP.

v.STATE.

Supreme Court of Georgia.

Dec. 19, 1900.

CRIMINAL LAW — POLLING JURY — LIQUORS — ILLEGAL SALE.

1. Where, in a criminal case, the jury returns a verdict of guilty, the accused may, as matter of right, demand that the jury be polled before the verdict is recorded. In response to such demand, made at the proper time, each juror should be questioned individually and separately as to his agreement to the verdict, and it is not sufficient to question the jurors collectively, and in concert, although each and all express their assent to the verdict.

2. One charged with selling intoxicating liquors without license cannot be convicted on proof merely that by his consent, on his premises, and in his presence, whisky was illegally sold by another.

(Syllabus by the Court.)

Error from superior court, Gordon county; A. W. Fite, Judge.

R. B. Blankenship was convicted of violating the liquor law, and he brings error. Reversed.

Starr & Erwin, for plaintiff In error.

Saml. P. Maddox, Sol. Gen., for the State.

SIMMONS, C. J. The accused was indicted for selling whisky without license. Upon his trial the jury returned a verdict of guilty. He moved for a new trial. His motion was overruled, and he excepted.

1. One of the errors complained of was that the court refused to comply with a demand, made by the accused at the proper time, that the "jury be polled, and that they be called seriatim by name, and that the usual or statutory questions be propounded to each juror" It appears from the ground of the motion in which complaint was made of this ruling that when the demand was made the judge remarked that he had not time to poll the jurors individually, and that he then, after having made all of the jurors stand up, and having instructed them to answer each for himself, propounded to them collectively the usual questions as to whether they agreed to the verdict. From the judge's certificate to the motion for new trial it appears that these questions were affirmatively answered by each and all of the jurors. Of this ruling several complaints were made; among them that "calling the jury in concert, and having them to answer in concert, is not polling a jury in contemplation of the law, " and that by the court's ruling the accused was deprived of a substantial right, —that of ascertaining whether each individual member of the jury had agreed, and did still agree, to the verdict returned. We think that the court erred in this matter. It has long been settled in this state that "in criminal cases the privilege of polling a jury is a legal right In the defendant, and docs not depend on the discretion of the court." Tilton v. State, 52 Ga. 478. It remains for us to consider whether the action taken by the lower court was tantamount to a poll of the jury, and whether it was sufficient to cure the erroneous refusal of a poll. In the first place, there can be no question that to poll a jury is to question the jurors individually, and one at a time. The very word "poll" is inconsistent with any other idea. This the judge declined to do. What he substituted for the polling of the jury was something very different. He propounded the questions to the 12 jurors collectively, instead of questioning them personally and seriatim. In the case of Williams v. State, 60 Ga. 367, it was held that jurors should be put upon the prisoner "in single file, and not in platoons, " and that it was error to permit "a regular march off the jurors upon the prisoner"; and we think that similar maneuvers in polling the jury is error demanding the grant of a new trial. The right to have the jury polled is given the accused in order that he may ascertain whether each and every one of the jurors concurs in the verdict returned. The law allows him to have this done by...