Groves v. State, (No. 5147.)

• Decision Date: 16 April 1926
• Docket Number: (No. 5147.)
• Citation: 132 S.E. 769,162 Ga. 161
• Parties: GROVES. v. STATE.
• Court: Georgia Supreme Court

162 Ga. 161

132 S.E. 769

GROVES.

v.STATE.

(No. 5147.)

Supreme Court of Georgia.

April 16, 1926.

(Syllabus by the Court.)

Where a jury trying a criminal case returns and publishes in open court a verdict of not guilty, which is regular in form, the judge has the legal right and authority, on his own motion, to poll the jury, and, when some of them have said that the verdict "was not their verdict, " to refuse to receive the verdict and to direct the solicitor general to erase the verdict from the indictment, and the jury "to retire to their room and consider the case further."

Where, under the circumstances stated in the preceding headnote, counsel for the defendant "objected to the erasing of the verdict of not guilty from said indictment, and to the court's ordering the jury back to their room to further consider said case, and moved thecourt to receive the verdict as read by the solicitor general in open court, and allow it to be filed, " the court did not err in overruling the motion.

When the jury, under the circumstances stated in the first headnote above, had followed the instructions of the court, retired to their room, and, after a further consideration of the case, returned a verdict of guilty, the court did not err in receiving this verdict and entering judgment thereon over the protest of counsel for the defendant that the jury had "previously returned a verdict into open court, which was read and published in open court, of not guilty."

Russell, C. J., dissenting.

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Verdict.]

Certified Questions from Court of Appeals.

Ed Groves was convicted of an offense, and he prosecuted error to the Court of Appeals which certified questions to the Supreme Court. Questions answered.

Maddox, Maddox & Mitchell, of Dalton, for plaintiff in error.

C. C. Pittman, Sol. Gen., of Cartersville, for the State.

GILBERT, J. The Court of Appeals certified certain questions, which are sufficiently indicated in the headnotes. In order to return a correct answer to the questions propounded, it is essential to first state some of the basic principles involved, and to bear in mind the character of the proceedings.

What is a verdict, and what does it mean? In Anthony v. Anthony, 103 Ga. at page 251, 29 S. E. 923, this court said the meaning of the word "verdict" is "a true saying."

"A verdict is the ascertained truth, to which effect is given by the judgment of the court." Vaughan v. Cade, 2 Rich. (S. C.) 49, 52.

"A verdict is a declaration of the truth as to the matters of fact submitted to the jury." Shenners v. West Side St. Ry. Co., 78 Wis. 382. 387, 47 N. W. 622, 623, McBean v. State, 83 Wis. 206, 211, 53 N. W. 497.

In fact the word imports verity, and we may add that, whenever a verdict is not "a true saying" and is not a verity, its mean ing, as said in Anthony v. Anthony, "is set at naught and rendered ridiculous."

"It is a very important act. It is a culmination of the trial, and embodies the conclusions of the jury upon the questions of fact litigated upon the trial." French v. Merrill, 27 App. Div. 612, 614, 50 N. Y. S. 776, 777.

It is a part of a legal investigation in a court; and our Penal Code, § 1008, declares "the object of all legal investigation is the discovery of truth." In its highest conception, "a court is a place where justice is judicially administered." It would appear that a verdict delivered into court by a jury, which does not comport with the findings of that jury, is not a true saying. It would not speak the truth as the jury found it. The jury's oath is to give a "true verdict." A verdict declaring contrary to the findings of the jury is not a true verdict. To hold otherwise would be to treat a solemn legal investigation as a game, where victory may be won by inadvertence and methods that are worse. We do not overlook the fact that there are certain fundamental safeguards properly thrown around the defendant in a criminal case which may free a guilty man; such as the constitutional inhibition against placing one in jeopardy a second time, the necessity for receiving verdicts in open court, the privilege and necessity of the presence of the accused at all stages of the trial, the benefit of counsel, etc. The principles above stated are not contrary to any of these. Though the powers of judges are more limited in this state than those possessed by the English judges, yet it has always been recognized in Georgia, and, so far as we are aware, in other American states, that the trial judge has the power to send the jury back for further consideration of the case, where it is uncertain that the jury intended to find as their verdict purports. Cook v. State, 26 Ga. 593; Mangham v. State, 87 Ga. 549, 552, 13 S. E. 558; 16 C. J. 1098, § 2576; 38 Cyc. 1874, notes 56, 60; 25 Standard Enc. Proc. 1031 (5); compare Williams v. State, 46 Ga. 647.

There being no controlling statute in this state, the common law prevails. Under the English common law, until the verdict was accepted by the court and recorded, the jury could be sent back for a reconsideration whenever it appeared that the verdict was not correct in form or was uncertain or did not speak the truth. In Coke upon Littleton, 227, 7 R. 2, it is said:

"After the verdict recorded, the jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand."

In 2 Hale's Pleas of the Crown, 299, it is said:

"Now touching the giving up of their verdict, if the jury say they are agreed, the courtmay examine them by poll, and, if in truth they are not agreed, they are finable. 29 Assiz. 27; 40 Assiz. 10. If the jurors by mistake or partiality give their verdict in court, yet they may rectify their verdict before it is recorded, or by advice of the court go together again and consider better of it, and alter what they have delivered. Plow. Com. 211, b, Saunder's Case."

At common law it was not customary for the jury to write out the verdict, as it is now done in this state, in criminal cases. In many civil cases in this state verdicts are now prepared for the jury to sign. Formerly at common law:

"The procedure in returning verdicts in cases of felony, leaving off some of the formalities in reference to forfeiture of estates, is, in substance, as follows: When the jury have come to a unanimous agreement with respect to their verdict, they return to the box to deliver it. The clerk then calls them over, by their names, and asks them whether they agree on their verdict, to which they reply in the affirmative. He then demands who shall say for them; to which they answer their foreman. This being done, he directs the prisoner to hold up his right hand, and addressing the jury says: 'Look upon the prisoner, you who are sworn. How say you? Is he guilty of the felony whereof he stands indicted, or not guilty?' The foreman then answers 'guilty' or 'not guilty, ' as the verdict may be. The officer then writes the word 'guilty' or 'not guilty, ' as the verdict is, on the record, and again addresses the jury: 'Hearken to your verdict, as the court hath recorded it. You say that A is guilty (or not guilty) of the felony whereof he stands indicted, and so say you all.' 1 Chitty, Crim. Law 636; Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220; Givens v. State, 76 Md. 485 ." Grant v. State, 33 Fla. 291, 294, 14 So. 757, 758, 23 L. R. A. 723, 728, 729.

An English case very similar to this case was Reg. v. Vodden, 6 Cox's Criminal Law Cases, 226. In that case the prisoner was tried for larceny. One of the jurors, called chairman, delivered a verdict of "not guilty, " which was entered by the clerk on his minutes, from which the record is made up. The prisoner was thereupon discharged out of the dock. The other jurors at that time interfered, with the statement that the verdict was "guilty." Then the prisoner was brought back into the dock, the jury was asked what the verdict was, and all twelve of them answered that it was "guilty, " and that they had been unanimous. The chairman of the jury stated that he had said "guilty, " and not, as he was understood to say "not guilty." The counsel for the prisoner objected to the receipt of the new verdict, for the reason that "the wrong verdict is now on the record of the court." The judges held that "a wrong verdict was taken in the first instance, " and that a true verdict was correctly received. Counsel insisted that an interval had elapsed between the announcement of the first verdict and the receipt by the court of the second; whereupon the judges said:

"We say only that the interval in this case was not too long; we are all agreed that what took place was quite right. It is what constantly occurs in ordinary transactions of life —a mistake was corrected within a reasonable time, and on the very occasion when it was made."

Accordingly the conviction was affirmed. The American courts, so far as we are aware, have stated, in almost the same words always employed by the English courts, that the jury could be returned for further consideration of a case until the verdict had been accepted and recorded. As modified, in this state, the rule is well settled that, after a poll of the jury or a discharge of the jury, the court no longer has any power to return the jury to their room for further consideration. Also it is well to state that any control over the jury must be very carefully exercised, to the end that the jury may not be influenced in the slightest as to their finding by anything that the judge may have said to them in regard to reconsidering the case. It is equally well settled that, until the jury has been polled and the verdict has been received as the true verdict of the jury, any juror may bring to the attention of the court the fact that the verdict announced is not his verdict.

"It is within the power of any juror,...