Martin v. The State Of Ga.

• Decision Date: 31 January 1874
• Citation: Martin v. The State Of Ga., 51 Ga. 567 (Ga. 1874)
• Parties: Elbert Martin, plaintiff in error. v. The State of Georgia,defendant in error.
• Court: Georgia Supreme Court

51 Ga. 567

Elbert Martin, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Criminal law. Jury. Practice in the Superior Court. Before Judge Hill. Bibb Superior Court. April Term, 1873.

Martin was placed on trial for the offense of simple larceny. He pleaded not guilty. The jury found to the contrary. He moved for a new trial upon the following, among other grounds:

"Because the court erred in recalling the jury from their room, after they had been charged with the case, and after they had been out over two hours considering their verdict, and giving them a second charge in the absence of defendant's counsel and without his consent, and by this second charge may have caused the conviction of the accused."

The presiding judge refused to certify the ground aforesaid for the reason that he understood the solicitor general to say that counsel for the defendant had waived everything, or he would not have recalled and recharged the jury.

The solicitor general stated that when counsel for defendant was about to leave the court-room, while the jury were out, he understood him to say that he waived everything.

Counsel for defendant stated that he only waived the polling ofthe jury and the reception of the verdict in his absence.

*The court required counsel for defendant to strike the aforesaid ground from the motion, to which defendant excepted.

The motion for a new trial was overruled, and defendant excepted.

The judge certifies that counsel for defendant was absent from the court-room at the time the jury was recharged without leave.

Lyon & Irvin, for plaintiff in error.

Charles J. Harris, solicitor general, by John Rutherford, for the state.

TrippE, Judge.

It is true the court required the prisoner's counsel to strike from his motion for a new trial the ground that the jury were called back after they retired, and were again charged by the court in the absence of defendant's counsel. But it still appears from the record that this was the fact, and the reason assigned for striking this ground was that the court understood the solicitor general to say, to-wit: that counsel for defendant had waived everything. Counsel for defendant denied this, and stated what he did waive, which was "the polling of the jury and the reception of the verdict in his absence." There was then a misunderstanding between the counsel for the state and the defendant. Should that mistake or disagreement cause the forfeiture or loss to the defendant of his right to the benefit of counsel during one of the most important portions of his trial, the charge of the court to the jury? The constitutional guaranty that "every person charged with an offense against the law shall have the privilege and benefit of counsel, " should be strictly...