Dodys v. State

• Decision Date: 19 February 1946
• Docket Number: 31008.
• Parties: DODYS v. STATE.
• Court: Georgia Court of Appeals

37 S.E.2d 173

73 Ga.App. 483

DODYS v. STATE.

No. 31008.

Court of Appeals of Georgia, Division No. 1.

February 19, 1946

Syllabus by the Court.

1. Where the court satisfied himself that a juror was incompetent in that he had been convicted of a crime involving moral turpitude and then set the juror aside and proceeded regularly until the other jurors were selected and the panel completed, there was no error in this conduct of the court. It is immaterial how the fact of such incompetency is shown, and if the judge is satisfied it exists, the consent of counsel was unnecessary to the validity of the court's action. Ozburn v. State, 87 Ga. 173 177, 13 S.E. 247.

2. The trial calendar of the court showing when the case or cases listed thereon are set for trial is generally made for the convenience of the court, the court officers, and counsel, and is not a judicial record which would be proved only by certified copies.

3. In the instant case where the defendant and his brother went to the home of a witness and the brother of the defendant offered the witness money to testify falsely in a material matter in a particular and specified judicial proceeding, it was, under the facts of this case, a question for the jury whether the defendant heard such statement of his brother and whether his failure to disaffirm or deny it amounted to an admission.

4. The evidence authorized the verdict of guilty of a felony (attempt to commit subornation of perjury).

W Paul Carpenter and George G. Finch, both of Atlanta, for plaintiff in error.

E. E. Andrews and Durwood T. Pye, both of Atlanta, for defendant in error.

MacINTYRE Judge.

1. During the trial of the case and before any evidence had been submitted upon the main issue, the judge set aside the juror upon the ground of incompetency in that he had been convicted of a crime involving moral turpitude. The State having exhausted its peremptory challenges, the following occurred: 'Mr. Carpenter (Attorney for the defendant): 'Your Honor, Mr. Garland has put the juror on us. I did not catch his employment, and I proceeded to ask him to repeat his employment. Now I think the juror is upon us. I don't see how he could reverse his postition.' Mr. Garland (Assistant-solicitor): 'I did not have any right to put him on him. I had used up all my strikes. We challenge him on the ground that he is incompetent, having been convicted of a felony.' Mr. Carpenter: 'We take the position that the juror is on us. If he wants to challenge him, let him do it in open court.' Mr. Garland: 'I will have to put the juror on the witness stand.' A. E. Mink (the juror in question) duly sworn, testified: * * * Mr. Carpenter: 'Now, your honor, I object to the solicitor examining this juror. He has been empaneled and sworn as a juror in the case of the State v. Charlie Dodys. When his name was called in the box, your honor, the solicitor announced publicly in open court, that the juror was upon us. That, in legal parlance, as your honor knows, is that he has passed the juror, held him qualified; and then it is up to the defendant's counsel either to accept or reject him. I had already questioned the juror as to his occupation; I had not quite heard exactly what his occupation was, and we were in the act of either accepting him as a juror or rejecting him, when the solicitor had a private conversation with your honor and with me concerning some outside matter that we, counsel for the defense, do not object to and do not think that it is a matter for judicial determination, so we object and move your honor to disallow the juror to be questioned in open court concerning some private personal matter of his which we contend does not disqualify him from acting as a juror and being a juror in this case.' The Court: 'Since it was stated that the State had no further strikes and since certain representations were made orally and in writing in the matter, the court overrules the motion and permits the examination of the witness. Go ahead.' Mr. Garland: 'Mr. juror, are you the same A. E. Mink that is named in that accusation (presenting document to witness)?' Mr. Mink: 'I reckon so.' Mr. Garland: 'You entered a plea of guilty to the crime of simple larceny?' Mr. Garland: 'I want to propound this question, your honor, and let your honor decide the significance of it.' Q. 'Are you the same juror that entered a plea of guilty to two counts of larceny from the house?' Mr. Carpenter: 'Now, if your honor please, we object to that question upon the ground that the highest and best evidence would be a certified copy of the indictment from whatever court, and that speaks for itself.' Mr. Garland: 'I suppose that, technically, his objection is good, but here is the evidence of a witness who knows * * *' Mr. Carpenter: 'He asked him the first question, which we did not object to after we made out general objection that he should not be examined at all. The next question was, was he the man named in the indictment, and he said he was. I did not object to that, now, he asks him was he the man who entered a plea of guilty and served a sentence, we are objecting too upon the simple and fundamental ground of law that a certified copy of the bill of indictment from another court is the highest and best evidence, and the only evidence.' The Court: 'The objective, insofar as it may go to any contents of the accusation is sustained, insofar as it may relate wholly to identity, it is overruled.' Mr. Carpenter: 'Now your honor, we accept the juror.' Mr. Garland: 'Now your honor, we move your honor to exclude the juror.' Mr. Carpenter: 'We take the position, your honor, there is no law disqualifying this juror.' The Court: 'I remove the juror for cause. Let him step out.'' Which said ruling being adverse to and against the contentions of the defendant, and to which ruling and decision of the court in removing the juror, defendant then and there excepted, and now excepts and assigns the same as error, as being contrary to law.

It is for the party asserting error to show it. The defendant could demand a competent and impartial jury but not an incompetent juror. Northern Pacific R. Co. v. Herbert, 116 U.S. 642, 646(1), 6 S.Ct. 590, 29 L.Ed. 755. Nothing appearing to the contrary it is presumed that the jurors who were selected to try and did try the case were competent and impartial jurors. State v. Smith, 56 Minn. 78, 83 (bottom), 57 N.W. 325. The defendant has a right to object to jurors put upon him and not a right to select those who are to be put upon him. State v. Lautenschlager, 22 Minn. 514. No juror sat on the trial of the case to whom the defendant offered any objection. He was tried by 12 jurors who were unobjectionable to him insofar as the record shows. State v. Sultan, 142 N.C. 569, 54 S.E. 841, 843, 9 Ann.Cas. 310; State v. Breaux, 164 La. 320, 97 So. 458(2). The judge states for the record that there was a conference in open court, but not within hearing of the jury, in which the original accusation with a conviction for simple larceny was submitted to the court and to counsel for the defendant. However, the defendant's counsel refused to participate in this conference. The ground of the challenge of the juror by the State was propter delictum on account of the juror's conviction for a crime involving moral turpitude. Under the decisions of Wright v. Davis, 184 Ga. 846, 193 S.E. 757, Williams v. State, 12 Ga.App. 337(3), 77 S.E. 189, Mitchell v. State, 69 Ga.App. 771, 777, 26 S.E.2d 663, the juror in question was disqualified if he had been convicted of a crime involving moral turpitude.

In Abbott's Trial Brief (Criminal Causes), § 124, p. 279, it is said: 'The Court may of its own motion, in the exercise of sound discretion,...