Hughes v. State
| Decision Date | 20 February 1925 |
| Docket Number | 4244. |
| Parties | HUGHES v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court did not err in overruling the demurrers, general and special, filed by the petitioner.
The evidence, submitted to the trial judge on the motion to set aside the verdict, authorized a finding of facts as set out in the statement herewith by this court.
"Laws made for the preservation of public order, or good morals cannot be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others, or affect the public interest." Penal Code 1910, § 5. Sarah v State, 28 Ga. 576 (2); Barton v. State, 67 Ga 653, 44 Am.Rep. 743; Robson v. State, 83 Ga. 169 (7), 9 S.E. 610; Cawthon v. State, 119 Ga. 395 (8 9), 411, 46 S.E. 897; Towns v. State, 149 Ga. 613, 101 S.E. 678; Denson v. State, 150 Ga. 618 (4), 104 S.E. 780, and authorities therein cited.
Where a jury agreed on a verdict at night after the court had recessed until the next morning, and the defendant in a felony case, with full knowledge of the facts, agreed that the verdict should be delivered to the court officer in charge of the jury, and that the jury should disperse, and that the verdict should be delivered into court the next morning with the jury reassembled, and where the agreement was fully executed and complied with in every detail, the defendant is bound by the waiver and is estopped from attacking the validity of the verdict, because of any of the irregularities to which she agreed. Smith v. State, 59 Ga. 513, 514, 27 Am.Rep. 393.
Moreover, where there has been no such waiver as held in the preceding headnote, a motion to set aside the verdict is not an available remedy. In this state the only available remedy is by a motion for a new trial. Brown v. State, 150 Ga. 585, 104 S.E. 428.
Where the judge presiding in the trial of a capital felony is sick and leaves the courthouse of the county in which the trial is being conducted, and goes to his home in a different part of the city which is the county site, leaving the jury in the jury room at the courthouse, with no further instruction than to have the jury at court at 9 o'clock the following morning, a recess of the court in effect results which will not be terminated until the appointed hour or the earlier return of the judge to the courthouse to resume the trial. As to matters affecting the trial itself the personal presence of the judge at the place fixed by law for holding court is absolutely essential, and no proceeding in the trial can be directed by telephonic communication. Consequently, even though counsel for both the state and the accused consented that the jury trying the case might deliver their verdict unsealed to a deputy sheriff of the court, and even though the defendant herself assented thereto, and thereupon the jury was dispersed, the purported verdict was void, and a motion to set the same aside, filed during the same term of the court, should have been granted. (Per Russell, C.J., dissenting.)
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Ida Hughes was convicted of murder, and she brings error. Affirmed.
See, also, 127 S.E. 113.
R. R. Jackson, of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., E. A. Stephens and Ralph H. Pharr, all of Atlanta, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
Ida Hughes was tried and convicted of the offense of murder. After the trial had proceeded for two days, January 23 and 24, the jury retired to consider their verdict. Not having reached a conclusion for some time, the jury was sent to supper, and returned to the jury room. Thereafter, the jury still having returned no verdict, there was a discussion between the court and counsel for the accused and for the state as to allowing the verdict to be delivered to Deputy Sheriff White, and allowing the jury to disperse whenever they should have agreed; but counsel differing, no agreement was reached. The presiding judge was very unwell, and at about 8:30 o'clock left the courthouse and went to his home, as did all the counsel in the case, leaving the jury in their room in charge of Deputy Sheriff White. Some time between 9 and 9:30 o'clock the jury notified Deputy Sheriff White that they had reached a verdict, and this officer by telephone notified the judge and E. A. Stephens, representing the state, as well as Messrs. Wells and Allen, the attorneys for the accused, that the jury had agreed. His honor, Judge Howard, was at home sick, and Messrs. Wells and Allen, each of whom lived about eight miles from the courthouse in different directions, were at their respective homes. Mr. Stephens, the assistant to the solicitor general, had been selected to receive the verdict in behalf of the state, and soon appeared at the courtroom. Mr. Stephens got in telephonic communication with the judge and with Messrs. Wells and Allen, and suggested to Mr. Wells that the jury hand their verdict to Deputy Sheriff White and be allowed to disperse until morning, when the verdict would be formally received, and was told by Mr. Wells to communicate with Mr. Allen, and that he (Wells) would do whatever Mr. Allen preferred. Mr. Stephens then telephoned to Mr. Allen, who agreed to the suggestion, and upon communication with the presiding judge the latter gave his consent by telephone.
The defendant, who was under guard of an officer in company with her codefendant, her husband, in a room adjoining the judge's chambers and the courtroom, also gave her consent to the action proposed, upon the promise that she be told the result of the finding. In accordance with these stipulations, Mr. Stephens, of counsel for the state, and Deputy Sheriff White went to the door of the jury room, where the verdict was handed to the deputy sheriff, who in turn handed it to the state's counsel in order that "he might see if it was in proper form." The verdict was then read by state's counsel and Mr. Hughes, and the jury was discharged by the deputy sheriff after being admonished to be in the courtroom at 9 o'clock the following morning. The jury was brought into the courtroom. The verdict was not received in court that night, only having been handed to the deputy sheriff to be kept until the next morning. The next morning, January 25, when the court met, the jurors were called into their box, and the question was asked whether the defendant desired to poll the jury, and her counsel replied in the negative. The verdict finding the defendant guilty of murder was then read, and the defendant was sentenced by the presiding judge to be hanged on a day set forth in the judgment.
The defendant, now plaintiff in error, on February 1, 1924, through different counsel from those who defended her, filed a petition to set aside the verdict and sentence of the court, upon various grounds. The only ground of the petition material to a decision in this case is that which attacks the verdict on the ground alleging that it was returned during a recess of the court and in the absence of the judge, and that the jury were permitted to disperse before the purported verdict was returned into court; it being urged that the verdict was a nullity. A hearing on the petition was had on February 9, 1924, when the respondent answered the petition. The petitioner demurred to the answer of the respondent, and moved to strike the same as insufficient. The trial judge overruled the demurrer, and thereafter denied the petition to set aside the judgment of the court. To the overruling of the demurrer and to the denial of her petition the plaintiff in error excepted.
The controlling rulings on this writ of error are stated in the headnotes.
Judgment affirmed.
All the Justices concur, except
Upon the facts is presented the controlling question as to whether a verdict can be received and returned into court during a recess of the court. The petition to set aside the judgment alleges that after the court took a recess at about 8:30 o'clock on the night of January 24, 1924, the court presided over by the judge was not again in session or reconvened as a court in any capacity whatever until the following day, January 25, 1924, at 9 o'clock a. m. One undisputed fact is that his honor, G. H. Howard, the judge presiding, was at his home more than a mile from the courthouse during all of the negotiations as to the reception of the verdict in the case and at the time that the verdict was received, and that the counsel in the case were not in his presence to address him face to face, nor he in theirs, and that whatever direction may have been given by the judge was communicated by telephone by persons not in his sight or presence.
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