Miller v. State

• Decision Date: 16 August 1913
• Docket Number: (No. 4,984.)
• Citation: 13 Ga. App. 440,79 S.E. 232
• Parties: MILLER et al. v. STATE.
• Court: Georgia Court of Appeals

79 S.E. 232

(13 Ga. App. 440)

MILLER et al.

v.STATE.

(No. 4, 984.)

Court of Appeals of Georgia.

Aug. 16, 1913.

Rehearing Denied Sept. 17, 1913.

(Syllabus by the Court.)

Russell, J., dissenting in part.

Error from Superior Court, Lumpkin County; J. B. Jones, Judge.

Charles Miller and another were convicted of burglary, and bring error. Affirmed.

R. H. Baker, of Dahlbnega, and Edgar Latham and Moore & Branch, all of Atlanta, for plaintiffs in error.

Robt. McMillan, Sol. Gen., of Clarkesville, and W. A. Charters and B. P. Gaillard, both of Gainesville, for the State.

HILL, C. J. The plaintiffs in error were jointly indicted for burglary, and on their trial were convicted. They filed a joint motion for a new trial, based upon the general grounds and upon numerous special assignments of error. This motion having been overruled, the case is here for review.

1. We do not deem it necessary to consider the general grounds for the purpose of showing that the verdict was supported by the evidence. While the conviction of the accused was based entirely upon circumstantial evidence, a careful examination of the evidence satisfies this court that the proof comes fully up to the standard required by law as to this character of evidence. The proved facts were not only consistent with the hypothesis of guilt, but excluded every other reasonable hypothesis save that of the guilt of the accused. Penal Code 1910, § 1010. We hazard nothing in saying that, in our opinion, it would be difficult to establish guilt by a clearer, stronger, or more consistent chain of facts and circumstances, or by circumstances which, taken together, would prove more conclusively the guilt of the accused. The verdict, therefore, should be allowed to stand, unless some material and prejudicial error of law was committed on the trial. An examination of all the special assignments of errors of law leads us to the conclusion that all but one are so clearly without merit as to render extended discussion of them wholly unnecessary. Indeed, this seems to have been the view entertained by learned counsel for plaintiffs in error, who, while not abandoning any of the grounds of the motion for a new trial, seem to rely principally upon one only. This one we will briefly consider and determine.

2. The ground referred to is as follows: "The jury was charged and entered upon the consideration of the case about 1o'clock on the afternoon of April 24th, and remained in the jury room during the afternoon and until about 10 o'clock at night, considering the case. The verdict was returned at 9 o'clock a. m., April 25, 1913. During the afternoon the jury had stated, in response to inquiries from the court, that it was not likely to agree upon a verdict. About 10 o'clock at night the judge, in company with the sheriff, visited the courthouse and inquired of the jury at the door of the jury room if they desired to be put to bed or were likely to make a verdict; the purpose of the judge being to arrange for the care and comfort of the jurors during the night, unless they were likely to agree upon a verdict. At this point one of the jurors inquired of the judge as to what he had charged with reference to the right of the jury to recommend that the defendants be punished as for a misdemeanor. To this inquiry the judge responded by stating in substance, that he had charged that, in the event the jury should find the defendants guilty, they would have the right to recommend that the defendants be punished as for a misdemeanor, and that, if such recommendation should be approved by the court, the defendants would receive a misdemeanor sentence. Within a few minutes after this occurrence, the judge informed counsel for defendants as to what had occurred. The defendants and their counsel were not present, nor had they waived their right to be present. Movants contend that, inasmuch as their counsel was not present and had not waived the right to be present when the judge answered the question of the juror, a new trial should be granted, for the reason that the answer of the judge, made in response to the question of the juror, was, in effect, a recharge, and especially so to the juror who propounded the question."

It is well settled that in the trial of a criminal case, whether a felony or a misdemeanor, the accused has the right to be present, in person and by his attorney, during every stage of his trial from the arraignment to the verdict. Lyons v. State, 7 Ga. App. 50, 66 S. E. 149, and citations. This right cannot be lost except by a clear and distinct waiver thereof by the accused. Martin v. State, 51 Ga. 567, and citations. This right is guaranteed to the accused by the fundamental law of this state, in order that he and his counsel may see to it that he has a fair and impartial trial and that nothing is done that would in any wise tend to his prejudice. Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial, and the better practice is for the trial judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury, and the communication should be restricted, in the absence of the accused and his coun sel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions), and, unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would arise that it was prejudicial, and the accused would be entitled to another trial. In line with this, it has been ruled in this state that, in the absence of both the prisoner and his counsel, the court could not call in the jury and read to them notes of the evidence (Wade v. State, 12 Ga. 25), and that, in the absence of the prisoner, who was confined in jail, the judge was not authorized to recharge the jury, although the prisoner's counsel was present and made no objection to the recharge (Bonner v. State, 67 Ga. 510).

The case of Hopson v. State, 116 Ga. 90, 42 S. E. 412, is relied upon by counsel for the plaintiffs in error. In that case it was held that "recalling a jury in a criminal case, who had retired to consider of their verdict, and, in the absence of the accused and his counsel, and without their consent, giving a second charge, is cause for a new trial, even though this charge be the same in substance as that which had been delivered in the first instance." In that case it was further said that it would make no difference whether both the accused and his counsel were ignorant of the recharge until after the trial ended, and that this irregularity might be taken advantage of after verdict, notwithstanding the knowledge thereof by the accused and his counsel while the trial was in progress. The first question, therefore, to be considered in the present case is whether the statement which the judge made in answer to the inquiry of the jury amounted to a recharge. In Roberson v. State, 135 Ga. 654, 70 S. E. 175, it was held not to be ground for a new trial that the judge, in the presence of the defendant, but during the voluntary absence of his counsel, repeated his instructions to the jury as to the different forms of verdict that might be rendered. In the present case it does not appear whether counsel was...