Brown v. State

Decision Date11 May 1921
Docket Number(No. 2396.)
Citation107 S.E. 536,151 Ga. 497
PartiesBROWN v. STATE.
CourtGeorgia Supreme Court

(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.)

Error from Superior Court, Warren County; B. P. 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 November 27, 1920, the judge took it under consideration, reserving his decision thereon until December 18, 1920, when he passed the following order refusing a new trial:

"This petition for new trial came on to be heard and was heard at the time and place fixed by previous order. I reserved my decision until this day. Now, after due consideration of such motion, I deny a new trial as to grounds that movant's counsel was not in court when the verdict was read. I desire to say that when I excused other jurors for the evening I announced from the bench to the sheriff that as soon as this jury made a verdict that I'd come back into court and receive the verdict and relieve this jury; this with sufficient tone for all to hear who were in attendance upon the court and interested and paying attention. In addition, it was known to the bar and officers of the court that it was the universal practice and custom of the court to always receive verdicts and relieve jurors in homicide cases as soon as notified they had reached a verdict, all known to movant's counsel. This verdict was received at 6 o'clock p. m., and before nightfall. The court heard no complaint nor objection from movant nor from his counsel as to the reception of such verdict in the absence of his counsel until the next calling after the court had reconvened from its dinner recess, passed sentence, and closed record on movant in said case."

L. D. McGregor, of Warrenton, for plaintiff in error.

M. L. Felts, of Warrenton, R. A. Denny, Atty. Gen., and Graham Wright, Asst. Atty. Gen., for the State.

FISH, C. J. (after stating the facts as above). [1] 1. We will first consider the ground of the motion for new trial based on the absence of the sole counsel of the accused when the verdict was received. In the "bill of rights" of the Constitution of this state it is declared:

"Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel." Civil Code, § 6301.

This constitutional right guarantees to one on trial for a crime alleged against him, and who enters thereupon with counsel employed by him present and defending him, to have such counsel present at every stage of the proceedings, so that he may personally see and know what is being done in the case, and "defendant * * * does not lose this privilege unless by a clear and distinct waiver thereof."...

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