Johnson v. State
| Decision Date | 03 October 1980 |
| Docket Number | No. 36567,36567 |
| Citation | 271 S.E.2d 789,246 Ga. 474 |
| Parties | JOHNSON v. The STATE. |
| Court | Georgia Supreme Court |
Stephen H. Harris, Savannah, for appellant.
Andrew J. Ryan, III, Dist. Atty., Robert M. Hitch, III, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., for appellee.
The appellant's convictions of murder, rape, kidnapping and aggravated assault, and his sentences, including a death sentence for the murder, were affirmed by this court in Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978). The present appeal is from the order denying his "extraordinary motion for extraordinary relief," which motion was predicated on the allegedly newly discovered evidence that his murder indictment had gone into the jury room with the not guilty plea and verdict of his co-indictee 1 masked. Even if this nonexistent appellate remedy be treated as an extraordinary motion for new trial, it is not shown that this is evidence that is newly discovered. Moreover, even if it was "newly discovered evidence," the motion showed no harmful error.
The general rule in this state is that where a former verdict (as involving a co-indictee) appears upon the indictment, the better practice is to cover, erase or in some way conceal the former verdict from the jury, but that this is a right which can be waived by failure to request it, and, in such event, there is no reversible error where the jury is instructed not to consider such verdict. See Smalls v. State, 105 Ga. 669(6), 31 S.E. 571 (1898) (a murder case); Corbin v. State, 212 Ga. 231(2), 91 S.E.2d 764 (1956) (a death case); Salem v. State, 228 Ga. 186, 188(5), 184 S.E.2d 650 (1971); Riggins v. Stynchcombe, 231 Ga. 589, 593, 203 S.E.2d 208 (1974); Bostick v. Ricketts, 236 Ga. 304(1), 223 S.E.2d 686 (1976); Page v. State, 120 Ga.App. 709(1), 172 S.E.2d 207 (1969); Chandler v. State, 143 Ga.App. 608, 610(6), 239 S.E.2d 158 (1977); Lockett v. State, 153 Ga.App. 569, 571(3), 266 S.E.2d 236 (1980).
The appellant urges several reasons for not applying this rule in his case, in which no request for concealment was made. He contends that it should not apply in a death case, yet it was so applied in Corbin v. State, 212 Ga. 231, 91 S.E.2d 764, supra, a death case. With mandatory review by this court in death cases, no reason appears for an exception in such cases.
He urges a distinction in Corbin in that the former verdict there was completely sealed by a cardboard stapled over it, whereas in the present case the former verdict was covered merely by paper, which allegedly could be held up to the light and read through, and was stapled only on the sides, allegedly permitting the jurors to peek under the...
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