Brown v. State

• Court: Supreme Court of Georgia
• Citation: 107 S.E. 536,151 Ga. 497
• Docket Number: 2396.
• Parties: BROWN v. STATE.
• Decision Date: 11 May 1921

107 S.E. 536

151 Ga. 497

BROWN
v.
STATE.

No. 2396.

Supreme Court of Georgia

May 11, 1921

Syllabus by the Court.

In the circumstances set forth in the motion for new trial, it was cause for reversal that the verdict was returned into court and received in the absence of the defendant's counsel.

The provisions of Penal Code 1910, § 73, are applicable only in cases of mutual combat; and, as there was no evidence submitted on the trial of this case tending to show mutual combat, it was not error to fail to give in charge to the jury the provisions of that section.

Additional Syllabus by Editorial Staff.

Where defendant moved for a new trial on the ground that the verdict was received in his counsel's absence, if the judge announced from the bench at the time the jury retired that he would return and receive the verdict as soon as it was arrived at by the jury, the judge should have so stated on the hearing of the motion, in order that defendant and his counsel might have the opportunity and benefit of answering such statement.

Error from Superior Court, Warren County; B. F. Walker, Judge.

John Brown, Jr., was convicted of murder, and he brings error. Reversed.

See, also, 104 S.E. 428.

John Brown, Jr., was convicted of murder, and sentenced to the penitentiary for life. The case is for review on a writ of error excepting to the overruling of his motion for a new trial. One ground of the motion for a new trial is that the court erred in receiving the verdict in the absence of the sole counsel for the defendant in the circumstances set forth in the record, which are to the following effect: After the evidence submitted on the trial had been concluded, argument heard, and the charge given, the jury retired to consider as to their verdict about 5 or 5:30 o'clock p. m. The court then excused the jurors not engaged in the trial of movant's case, and announced a recess until next morning. The sole counsel of the defendant thereupon left the courtroom, in company with the judge, the latter going to his room, and counsel going to his home, a few hundred yards from the courthouse, and from there took a ride in his automobile, returning at about 6 o'clock p. m. the same day. During the counsel's absence the judge, being informed by a bailiff that the jury had reached a verdict, returned to the courtroom, and, not being able to communicate with movant's counsel, had movant brought in and inquired of an attorney of the court present who was in no way connected with the case if he would represent movant's counsel while the verdict was received and upon receiving an affirmative answer asked if he would waive the polling of the jury which inquiry was also affirmatively answered. Thereupon the verdict was received and published and the jury rendering it were discharged. While the defendant was present during this proceeding he never consented to any part of it nor did he waive the presence of his sole counsel nor authorize any one else to do so nor agree that any one should be appointed to represent him nor was he requested to do any of these things. The ground of the motion contains this:

"The judge states that he informed the sheriff that as soon as said jury trying said case should make a verdict to notify him, and he would come and receive it. L. D. McGregor sole counsel for the defendant, John Brown, Jr., did

not hear such statement made by the judge to the sheriff neither did the defendant, John Brown, Jr., hear such statement."

This ground of the motion and all others were approved by the court.

On the hearing of the motion the affidavits of the movant, his sole counsel, the attorney who represented the movant at the request of the court when the verdict was received and published, and the clerk of the court were submitted to the judge in support of this ground of the motion. No counter affidavits or showing were submitted in behalf of the state. After argument on the motion on...