King v. State

• Decision Date: 22 September 1955
• Docket Number: No. 35831,No. 2,35831,2
• Citation: 92 Ga.App. 616,89 S.E.2d 585
• Parties: L. G. KING v. The STATE
• Court: Georgia Court of Appeals

Page 585

89 S.E.2d 585

92 Ga.App. 616

L. G. KING v. The STATE.

No. 35831.

Court of Appeals of Georgia, Division No. 2.

Sept. 22, 1955.

Syllabus by the Court.

The statement to the jury by the bailiff purported by him to have been authorized by the judge after the jury had deliberated for 24 hours, that 'he was going to keep them a week or they would make a verdict,' after which three jurors changed their votes from acquittal to conviction and a verdict of guilty was rendered within 30 minutes from the time the statement was made, must conclusively be presumed to have influenced the verdict and is such improper conduct as to demand a new trial in this case. That this statement thus made by the bailiff was in fact unauthorized by the trial court is immaterial, this not appearing until after the verdict.

This appeal represents an exception to the judgment of the trial court denying an extraordinary motion for a new trial as to the defendant L. G. King, who was indicted and tried in the Superior Court of Haralson County for the offense of murder and convicted of voluntary manslaughter. Affidavits were presented by both the defendant and the State at the hearing of this motion and testimony was introduced. From this it appears that the jurors had considered the case about 24 hours; that one of them requested the bailiff to tell the judge it would be impossible for them to make a verdict and they would like to go home; that thereafter the bailiff told the jury the judge said that they would make a verdict or he would keep them there a week, which was not true, as what the judge actually told the bailiff in substance was to leave the jury alone and tell them mothing; that before this statement the jury stood 9 to 3 for conviction; that within 30 minutes thereafter they brought in a verdict of guilty.

11 of the jurors either swore or deposed that they had taken the bailiff's statement as a pleasantry, and that it had no effect on their verdict. As to the 12th juror, his original affidavit contained the following language: 'Deponent says that on each and every vote of the jury he had voted for acquittal of the defendant, L. G. King, with the exception of said final vote immediately after said communication from said bailiff; that deponent was 59 years of age and was in bad health, that said jury had been out two nights; that he was sick, and having been away from home 2 nights, that when said communication of said bailiff which was purported to have been made by and from the court was made known to him, he and 2 of the other jurors on said jury immediately changed their vote from acquittal to guilty of voluntary manslaughter * * * that if said communication from said bailiff purporting to have been made by the direction of the judge had not been made known to him, and if he had not believed said purported communication from the judge, he would not have agreed for said verdict of guilty of voluntary manslaughter.' This affidavit was attached to the extraordinary motion for a new trial. Upon the hearing, and attached to the State's counter-showing, was another affidavit by the same juror, which contained the following: 'Deponent further says on oath that the statement of the bailiff in charge of said jury to the effect that the judge would keep the jury a week until they made a verdict had no influence on me as to the verdict made, but merely caused me to reach the said verdict at an earlier time.'

The extraordinary motion for a new trial was denied by the hearing judge (not the same judge who heard the trial of the case), and this judgment is assigned as error.

Murphy & Murphy, Bremen, Claude V. Driver, Buchanan, for plaintiff in error.

Robert J. Noland, Douglasville, for defendant in error.

TOWNSEND, Judge.

Any remarks to the jury by the trial judge or other officer of the court not relevant to any issue in the cause which would have a tendency to coerce them into reaching their verdict constitutes reversible error. Campbell v. State, 81 Ga.App. 834, 60 S.E.2d 169. That the statement here complained of was made by the bailiff to the jury and falsely attributed to the judge, and that its falsity was not known until after the verdict, is admitted. In Shaw v. State, 83 Ga. 92, 101, 9 S.E. 768, the jury, while deliberating their verdict, were taken to a prayer meeting where the solicitor general presided, seated them, and in his sermon made reference to the court and the trial. Headnote 1 of this case states: 'Where misconduct of a juror or of the jury is shown, the presumption is that the defendant has been injured, and the onus is upon the State to remove such presumption by proper proof. While reviewing courts are loath to interfere with the decision of the trial judge that the presumption has been removed, such decision is in this State subject to review. The misconduct of the jury and of the officer in charge of them in this case was of such a character as to require a new trial.' At page 99 of 83 Ga., at page 769 of 9 S.E. it is held as follows: 'There are other things, however, which if done by an individual member of the jury, or by the whole jury, are so contrary to the public policy of the state in the procurement of fair and impartial trials for the citizens of the state as to require that a verdict rendered by such jury be set aside, whether the defendant has been injured thereby or not; and, in our opinion, the...