Humphrey v. State

• Decision Date: 13 June 1919
• Docket Number: (No. 10472.)
• Citation: 24 Ga.App. 22,99 S.E. 714
• Parties: HUMPHREY v. STATE.
• Court: Georgia Court of Appeals

24 Ga.App. 22

99 S.E. 714

HUMPHREY

v.STATE.

(No. 10472.)

Court of Appeals of Georgia,

Division No. 2.

June 13, 1919.

Motion for Rehearing Denied June 27, 1919.

(Syllabus by the Court.)

Error from Superior Court, Warren County; B. F. Walker, Judge.

Proceeding between the State and E. H. Humphrey. From the judgment, and the denial of his motion for new trial, Humphrey

brings error. Affirmed.

L. D. McGregor, of Warrenton, for plaintiff in error.

R. C. Norman, Sol. Gen., of Washington, Ga., and M. L. Felts, of Warrenton, for the State.

BROYLES, P. J. [1, 2] The first headnote alone needs elaboration. The amendment to the motion for a new trial in this case was based solely upon the alleged ground that one of the jurors was related within the prohibited degree to the prosecutor in the case. The amendment (leaving out the formal parts) was as follows:

"(1) That when the solicitor general called the above-stated case for trial, his honor B. F. Walker, the judge presiding during the trial of said case, requested all jurors that were related by blood or marriage to W. O. Brinkley, the prosecutor in said case, to please let that fact be known to the court, so that a qualified as a competent juror to try said case [a qualified and competent jury could be secured to try the case].

"(2) That the said A. M. Reese was chosen and sworn as a member of said jury, which rendered a verdict of guilty on both counts in the indictment against this movant in the above-stated case, and participated as a member of said jury in finding the verdict of guilty against this movant, and in returning said verdict of guilty in said case into court and publishing said verdict of guilty in said case against this movant.

"(3) That L. D. McGregor, was the only and sole counsel representing the movant in the above-stated case.

"(4) That this movant, neither his counsel, had no knowledge or notice of any kind or character of any kinship or relation existing between A. M. Reese, the said juror in the trial of the above-stated case and W. O. Brinkley, the prosecutor of this movant in the above-stated case, before the trial of said case or during the trial of said [case]. That this movant, neither his counsel, had no knowledge or notice of any kinship or relation existing between A. M. Reese, juror in said case, and the said W. O. Brinkley, prosecutor in said case, until some days after the trial of said case, and until some days after the publishing of said verdict of guilty against this movant in the above-stated case.

"(5) That the said A. M. Reese was disqualified to serve as a juror in said above-stated case because of his relationship by blood to the said W. O. Brinkley, the prosecutor in said case, which relation was unknown to the movant or his counsel until some days after the movant had been found guilty and the verdict of guilty had been published by the jury in said case.

"That the said A. M. Reese, one of the jurors in said above-stated case, was related by blood to W. O. Brinkley, the prosecutor in the above-stated case, within the prohibited degrees, in the following manner, to wit: That——Gardner was the father of Sterling Gardner and Prior Gardner; that the said Sterling Gardner and the said Prior Gardner were full brothers by blood; that the said Sterling Gardner was the father of Mrs. Mary Rose Gibson (nee Miss Mary Rose Gardner): that Mrs. Mary Rose Gibson (nee Mary Rose Gardner) was the mother of Mrs. Sarah Brinkley (nee Sarah Gibson); that Mrs. Sarah Brinkley (nee Sarah Gibson) was the mother of W. O. Brink-ley, the prosecutor of this movant in the above-stated case; that the said Prior Gardner (who was the full brother of the said Sterling Gardner) was the father of Mrs. Fannie Culpepper (nee Fannie Gardner); that Mrs. Fannie Culpepper (n6e Fannie Gardner) was the mother of Mrs. Drucilla Chapman (nee Drucilla Culpepper); that Mrs. Drucilla Chapman (nee Drucilla Culpepper) was the mother of Mrs. Sis Reese (n6e Sis Chapman), and that Mrs. Sis Reese (nee Sis Chapman) was the mother of A. M. Reese, the juror in the above-stated case, who participated in the rendition of the verdict...