Crawley v. State
| Decision Date | 12 August 1921 |
| Docket Number | (No. 2376.) |
| Citation | 151 Ga. 818,108 S.E. 238 |
| Parties | CRAWLEY et al. v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Union County; J. B. Jones, Judge.
George Crawley and others were convicted of murder, and on error the conviction was affirmed (150 Ga. 586, 104 S. E. 410). An extraordinary motion for new trial below was denied, and they bring error. Reversed.
John A. Sibley and Hughes Spalding, both of Atlanta, for plaintiffs in error.
J. G. Collins, Sol. Gen., and Howard Thompson, both of Gainesville, and Pat Haralson and T. S. Candler, both of Blairsville, for the State.
GEORGE, J. George Crawley, Decatur Crawley, Rosa Crawley, and Blain Stewart were jointly indicted and jointly tried at the October term, 1919, of Union superior court, for the offense of murder. The defendants were convicted. George Crawley and Decatur Crawley were sentenced to be hanged, and Rosa Crawley and Blain Stewart were sentenced to life imprisonment in the penitentiary. The defendants made a motion for new trial, which was overruled, and the judgment of the lower court affirmed by the Supreme Court on September 30, 1920. A motion for rehearing was filed, and this motion was denied on October 2, 1920. 150 Ga. 586. 104 S. E. 410. Union superior court convened on October 4, 1920, and adjourned on October 9, 1920. On October 9, 1920, and before the adjournment of court, the defendants named above filed an extraordinary motion for new trial, upon the grounds that: (1) One of the jurors who had rendered the verdict finding them guilty, to wit, Frank H. Spivia, was disqualified by reason of relationship to the prosecutrix which fact was unknown to the defendants or their counsel; and (2) one of the jurors who rendered the verdict finding them guilty, to wit, Luther Chastain, was disqualified by reason of prejudice and bias against the defendants, which fact was unknown to the defendants or their counsel. On December 7, 1920, the judge of the superior court entered a judgment overruling the extraordinary motion for new trial, and the movants excepted.
1. Penal Code 1910, § 1091, provides:
The state contends that the judgment denying the extraordinary motion for new trial should be affirmed, because, if for no other reason, 20 days' notice of movants' intention to move for a new trial upon extraordinary grounds was not given to the solicitor general as required by the Code. The record discloses that the grounds upon which the extraordinary motion was made were not discovered until after the convening of the superior court on October 4, 1920. As stated above, the motion was filed on the last day of the term of the court, to wit, October 9, 1920. The motion for rehearing made in the case was denied by the Supreme Court only 2 days before the convening of the October term, 1920, of Union superior court. A motion for new trial based on extraordinary grounds must be filed in term time, either at the term when the case is tried or at some subsequent term. Due diligence required the movants to make their extraordinary motion for new trial promptly on discovery of the grounds. As stated, the grounds of the motion relied on were discovered by movants and their counsel during the October term, 1920, of Union superior court. It was therefore impossible for the movants to give counsel for the state 20 days' notice of their intention to file the extraordinary motion for new trial at the October term. It appears, however, that the trial judge entertained the motion and granted a rule nisi thereon, calling on the solicitor general to show cause on November 23, 1920, why the motion should not be granted. Upon the motion and nisi the solicitor general acknowledged service in the following language:
On motion of the solicitor general the hearing was postponed until November 6, 1920, and again postponed until November 9, 1920, on which latter date the court took the motion under advisement, and thereafter, on December 7, 1920, entered a judgment overruling the motion. It will be noted that the opposite party had 20 days' notice of the motion before the final hearing thereon, and that he was fully advised of the grounds of the motion. We are of the opinion that this was sufficient. Compare Brinkley v. Buchanan, 55 Ga. 342. We do not rest the decision of this point upon the doctrine of waiver alone, nor upon the fact that the court granted the nisi notwithstanding the failure of movants to give the solicitor general 20 days' notice of their intention to file the motion for new trial; but we are of the opinion that 20 days' notice of the filing of the extraordinary motion for new trial before final hearing there on is a sufficient compliance with the requirements of the statute. The decision on this point is made upon all the facts as they appear in the record, and it is unnecessary to decide whether the refusal of the judge to grant a rule nisi solely upon the ground that movants had failed to give the solicitor general 20 days' notice of their intention to make the extraordinary motion would be erroneous.
2. Considering the grounds of the extraordinary motion in their inverse order, we are of the opinion that the court did not err in overruling the motion upon the second ground thereof. This ground is based upon an affidavit of a witness to the effect that prior to the trial of the case Luther Chastain, one of the jurors, had stated that "the Crawley boys and Blain Stewart ought to be hung, and if he got on the jury he would make it had for them, " and upon the affidavit of another witness to the effect that this juror, after the trial of the case, had stated that the verdict rendered in the case was in accordance with his previously fixed opinion. After the trial of the case and before the filing of the extraordinary motion for new trial, the juror died. The state was therefore unable to produce an affidavit by the juror; but the state offered certain affidavits detailing facts and circumstances tending to cast suspicion upon the truth of the statements contained in the affidavits offered by the movants and to disprove this ground of the motion. In addition, the juror had been sworn on the voir dire. Being dead at the time of the filing of the extraordinary motion for new trial, it was competent for the court to take in consideration the juror's sworn statement that he had not formed or expressed an opinion as to the guilt or innocence of the accused, and that there was no bias or prejudice resting on his mind either for or against the accused. See Buchanan v. State, 24 Ga. 282, 286. In view of the counter showing submitted by the state, the case on this point is within the rule announced in Jefferson v. State, 137 Ga. 382, 73 S. E. 499; McNaughton v. State, 136 Ga. 600, 71 S. E. 1038; Era-toy v. State, 138 Ga. 464, 75 S. E. 604.
3. On the first ground of the motion it appears that the prosecutrix, the wife of the deceased, is related to the wife of the juror Spivia. Upon this point the evidence submitted by the movants and the state is not in conflict. The wife of the juror is five degrees removed from the common ancestor, and the prosecutrix is four degrees removed from the common ancestor. By the rule of the civil law the juror's wife and the prosecutrix are related in the ninth degree; by the canon law in the fifth degree. The movants and their counsel were unaware of this relationship until the judgment of the trial court overruling the original motion for new trial was heard and affirmed by the Supreme Court. That the movants and their counsel, by the exercise of due diligence, could not have sooner discovered the relation of the juror to the prosecutrix, is not fairly in dispute. The trial court, in overruling the extraordinary motion, expressly found that neither the movants nor their counsel had waived the alleged disqualification of this juror, and waiver necessarily results either from knowledge of such relationship or from ignorance of such relationship, due to the failure to exercise proper diligence. It appears that the prosecutrix and counsel for the state were also unaware of the relationship until after verdict; and the affidavit of the juror himself, to the effect that he did not know of the relationship until after the trial, and that even upon notice and inquiry he was unable to ascertain the exact relationship, was offered by the state upon the hearing of the motion. In view of all the facts and circumstances detailed in the affidavits of movants and of their counsel, it must be held that both movants and their counsel exercised due diligence in the premises. There is no statute in this state expressly declaring what degree of relationship will disqualify a juror in a criminal case. Nor is the rule prescribed by which the degree of relationship is to be determined. In the selection of a juror for the trial of a criminal case the state or the accused may make either of the following objections:
In Brown v. State, 28 Ga. 439 (), it appeared that one of the jurors was a cousin of the prosecutor, but the degree of the relationship is not stated. It was held that a new trial should be granted "where one of the jury is...
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