Harris v. State

• Court: Georgia Supreme Court
• Writing for the Court: GEORGE, J.
• Citation: Harris v. State, 150 Ga. 680, 104 S.E. 902 (Ga. 1920)
• Decision Date: 12 November 1920
• Docket Number: 2095.
• Parties: HARRIS v. STATE.

104 S.E. 902

150 Ga. 680

HARRIS v. STATE.

No. 2095.

Supreme Court of Georgia

November 12, 1920

Syllabus by the Court.

Under the facts of this case, the trial judge erred in refusing to grant a new trial, on an extraordinary motion, on the ground of improper communication with the jury.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Charlie Harris was convicted of murder and sentenced to be hanged his motion for a new trial was denied, and he brought error and after an affirmance by the Supreme Court had been made a judgment of the superior court, his extraordinary motion for a new trial was overruled, and he brings error. Reversed.

Beck P.J., and Gilbert, J., dissenting.

Len. B. Guillebeau, of Atlanta, and W. H. Ennis, of Rome, for plaintiff in error.

C. H. Porter, Sol. Gen., of Rome, R. A. Denny, Atty. Gen., and Graham Wright, Asst, Atty. Gen., for the State.

GEORGE J.

In Harris v. Roan, 119 Ga. 379, 46 S.E. 433, it was ruled:

"The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs; as, when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character."

See, also, Cox v. Hillyer, 65 Ga. 57; Wheeler v. State, 149 Ga. 473, 100 S.E. 568. This court, in Doyal v. State, 73 Ga. 72, announced the rule by which it will be governed in cases of this character, as follows:

(1) "After the trial of a cause by the jury, and the return of a verdict of guilty, and the refusal of a new trial by the circuit court, and the affirmance of that judgment by this court, the grounds of the second motion for a new trial will be scrutinized closely, and must be laid in the very foundations of the purity of jury trial, to authorize the grant of such an application."

(2) "The scrutiny will be closer by this court, and its power exercised with more hesitation when the presiding judge has refused to interfere with the verdict, on the ground of the disqualification of a juror."

In that case the judgment of the trial court overruling the defendant's extraordinary motion for new trial was reversed. The ground of the extraordinary motion was that one of the jurors in the case was not impartial, and had willfully concealed this fact for the purpose of convicting the defendant and causing him to be hanged. In Gholston v. Gholston, 31 Ga. 625, 639, a divorce case, this court granted a new trial, on original motion, because the sheriff, under whose official charge the jury had been placed, informed the jury that--

"Unless they should agree speedily, the judge would carry them with him to Elbert county, and that he [the judge] was making preparations for that purpose."

In the course of the opinion it was said:

"It is an inflexible rule of law that after a jury shall have been charged with a cause, having had the law and the evidence placed before them, by or under the supervision and direction of the court, all communication between them and the rest of mankind shall be suspended, except by permission of the court, until they shall have been discharged from the case. It is of the last importance that this rule be rigidly enforced, to the end that the administration of justice may be both pure and free from the suspicion of impurity. The ascertainment that some unauthorized communication had been had with the jury, the nature and purport of which was unknown, ought to vitiate a verdict. How much more a known communication, calculated to intimidate jurors, to unsettle resolution, based upon fixed and well-considered opinion--to produce a conflict between a sense of duty and personal comfort,

convenience, or interest. * * * We cannot be assured that the agreement subsequently made, but unattainable before, was not effected by this communication. The communication itself was clearly illegal; it was calculated to influence the jury, or some of them, and therefore the verdict is not free from taint."

In Obear v. Gray, 68 Ga. 182 (original motion for new trial), it was said:

"For a bailiff in charge of a jury to tell them, while considering the case and apparently finding it difficult to agree, that in his opinion the judge would keep them out a week or compel them to agree, was such practice as necessitates a new trial."

In Smith v. State, 122 Ga. 154, 155, 50 S.E. 62, 63 (original motion), it was said:

"The law is, in the trial of felony cases, that if any irregularity is shown in the conduct of the jury or the officers that have them in charge, the burden is upon the state to show that the accused is not injured by such misconduct. In this case, as before remarked, 10 of the jurors depose that their minds were not influenced by any of the irregularities detailed above; but we think that for the state to fully carry the burden it must prove by all the jurors such facts as will tend to show to the court that no injury has been suffered by the accused. The record does not disclose why 2 of the jurors did not join with the others in making these affidavits. This, unexplained, might imply that they could not truthfully do so."

See, also, Cooper v. State, 103 Ga. 65, 29 S.E. 439.

In Renfroe v. State, 13 Ga.App. 655, 79 S.E. 758, a misdemeanor case, the Court of Appeals reversed the judgment denying the defendant a new trial, on original motion, upon the following state of facts:

"The jury had had the case under consideration for about 18 or 20 hours, and, being unable to agree called the sheriff and requested him to communicate with the court, and ask the court either to recharge the jury, or to order a mistrial. The sheriff replied: 'Gentlemen, if it is a new charge you want, I am ready to go right down and submit it; but if it is a mistrial, I would feel embarrassed to do it, because I have heard the judge say that he was conscientiously opposed to mistrials in Wilcox county. But I will submit it, if you insist on it.' This was all that passed between the sheriff and the jury; and shortly afterward the jury returned a verdict of guilty."

In that case each of the 12 jurors made affidavit to the effect that they were not influenced by the conduct of the sheriff to return a verdict of guilty; but the affidavits were not properly entitled in the cause.

In Smith v. State, 2 Ga.App. 574, 59 S.E. 311, the judgment of the trial court, in overruling an extraordinary motion for new trial based upon the ground that one of the jurors who rendered the verdict finding the defendant guilty was disqualified by reason of his relationship to the prosecutor within the ninth degree, was reversed. As before noted, the case of Doyal v. State, 73 Ga. 72, was an extraordinary motion for new trial, and this court there recognized that the ground of the motion, to wit, the partiality of one of the jurors in the case and his willful concealment of that fact for the purpose of carrying out his design of convicting the defendant and...