Parker v. State

• Decision Date: 16 November 1916
• Docket Number: (No. 92.)
• Citation: 146 Ga. 131,90 S.E. 859
• Parties: PARKER. v. STATE.
• Court: Georgia Supreme Court

(146 Ga. 131)

90 S.E. 859

PARKER.

v.STATE.

(No. 92.)

Supreme Court of Georgia.

Nov. 16, 1916.

(Syllabus by the Court.)

Certified Questions from Court of Appeals.

Green Parker was convicted of crime, and he brings error. On questions certified by the Court of Appeals. Questions answered, and conviction affirmed.

J. W. Overstreet and M. R. Lufburrow, both of Sylvania, for plaintiff in error.

A. B. Lovett, Sol., of Sylvania, for the State.

ATKINSON, J. The Court of Appeals has certified to the Supreme Court the following questions for decision:

"(1) Where the judge presiding in the trial of a criminal case is related to the defendant within the fourth degree of consanguinity, and neither the defendant nor his counsel has knowledge, until after the trial, of the existence of such relationship, is the relationship a sufficient ground for a new trial?

"(2) Is the ruling of this court in Oliff v. State, 1 Ga. App. 553 , that the defendant in a criminal case may successfully urge, in a motion for a new trial, the disqualification of the presiding judge on account of the relationship to the defendant within the degree prohibited by section 4642 of the Civil Code of 1910, where it is made to appear that the facts upon which the disqualification is based were unknown to him and his counsel until after the verdict, correct; or does the ruling in that case conflict in principle with the rule adopted and repeatedly adhered to by the Supreme Court, which precludes the losing party from complaining of the disqualification of a juror by reason of unknown relationship to him? See Wright v. Smith, 104 Ga. 174 ; Sikes v. State, 105 Ga. 592 ; Downing v. State, 114 Ga. 30 ; Screws v. Anderson, 124 Ga. 364 ."

It is declared in Penal Code 1910, § 999:

"On calling each juror, he shall be presented to the accused in such a manner that he can distinctly see him, and then the state, or the accused, may make * * * the following objections, viz.: * * * (4) That he is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury. It shall be the duty of the court to hear immediately such evidence as may be submitted (the juror being a competent witness) in relation to the truth of these objections; and if he shall be satisfied of the truth of either, the juror shall be set aside for cause. If either one of these objections be true in fact, but the fact is unknown to either party, or the counsel of such party, at the time the juror is under investigation, and is subsequently discovered, such objection may be made, and the proof heard at any time before the prosecuting counsel submits to the jury any of his evidence in the case; but if known to the party or his counsel, the objection must be made before the juror is sworn in the case."

The case of Wright v. Smith, 104 Ga. 174, 30 S. E. 651, was one in which the losing party was related to one of the jurors within the prohibited degree, and the relationship was not discovered until after verdict It was held:

"Relationship of a juror within the prohibited degrees to the unsuccessful party in the case, although unknown to such party or his counsel until after verdict, is not sufficient ground for a new trial, especially in a case where the verdict was manifestly right."

In an elaborate opinion by Lewis, J., it was stated that the verdict was "hot an absolute nullity, but only voidable, " and, being such, the parties could waive the disqualification of a juror; but that, where the relationship was between the juror and the unsuccessful party to the case, the relationship would be presumed to be favorable to that party, and the court would not grant a new trial merely because of such relationship. The opinion in the case above cited was reaffirmed in Sikes v. State, 105 Ga. 592, 31 S. E. 567, all the Justices concurring; and in Downing v. State, 114 Ga. 30, 39 S. E. 927. See, also, McCrimmon v. State, 126 Ga. 560, 55 S. E. 481.

The Court of Appeals, in Oliff v. State, 1 Ga. App. 553, 57 S. E. 941, declined to extend the rule above announced to the case of the disqualification of a judge; and the Supreme Court is now asked whether the...