Roberson v. State
| Decision Date | 24 December 1914 |
| Docket Number | 6057. |
| Citation | 83 S.E. 877,15 Ga.App. 545 |
| Parties | ROBERSON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
When evidence introduced in support of a ground of a motion for new trial is contradicted or explained, it is for the judge to determine the credibility of the witnesses presented by each party, respectively, and the probative effect of the evidence as a whole is addressed to the sound discretion of the court.
It is the paramount duty of all courts to insure fair and impartial trials, and the conduct of jurors during the consideration of a case should be free from all suspicion of extraneous or improper influence. As a general rule, improper conduct on the part of juror will be presumed to have been prejudicial to a fair trial; still, mere irregularities in the conduct of jurors, which clearly could not have effected the result, do not afford sufficient ground for setting aside a verdict, and even gross misconduct on the part of the jury may be held to have been waived where the losing party, though having knowledge of the misconduct, fails to make timely and appropriate objection and takes the chances on a verdict.
Where alleged irregular conduct of jurors is explained by testimony from which it appears probable that the losing party was not injured by it, the verdict should not be disturbed if there is evidence that during the trial the defendant's counsel knew of the alleged misconduct and waived the right to move that the case be withdrawn from the consideration of the jury and that a mistrial be ordered.
The trial was free from material error, the verdict is supported by evidence, and there was no abuse of discretion in passing upon the testimony submitted for and against the ground of the motion for new trial relating to the presumptively prejudicial misconduct of the jury.
Error from Superior Court, Telfair County; E. D. Graham, Judge.
Math Roberson was convicted of assault with intent to murder, and brings error. Affirmed.
B. M Frizzelle and Hamilton Burch, both of McRae, for plaintiff in error.
W. A Wooten, Sol. Gen., of Eastman, and Eschol Graham, of McRae for the State.
Roberson was indicted for the offense of assault with intent to murder, and was convicted with a recommendation that he be punished as for a misdemeanor. He excepts to the overruling of his motion for new trial. In addition to the usual general grounds, the defendant alleged, in his motion for new trial, that during the trial of the case, and after the judge had charged the jury and the jury had retired to the jury room, the jury obtained a copy of the Penal Code of Georgia, and a member of the jury read to and in the presence of the jury certain portions of the law therein contained, in order to convince the jurors that he was right in his recollection of the charge as given them by the presiding judge. It was further alleged that the book was obtained by Burkhalter, the foreman of the jury, the evening of the day before the verdict was rendered, and that the book remained in the room with the jury until the next morning. It is further stated, in the motion for a new trial that neither the defendant nor his counsel knew of the misconduct on the part of the jurors until the following morning, and that immediately upon hearing of it one of the defendant's counsel reported the fact to the court. The judge ordered the sheriff to go to the jury room and secure the book, and the sheriff did this; but it is alleged that neither the defendant nor his counsel knew "this fact [[that the Code was in the jury room] from the sheriff nor any one else to be correct until after the verdict of the jury in said case had been rendered and the defendant sentenced."
No errors of law are alleged to have been committed in rulings upon the testimony nor in the charge of the court, and there was sufficient evidence to authorize the verdict of guilty; so that the only ground which requires consideration is the amendment to the motion for a new trial relating to the alleged misconduct of the jury. Upon consideration of this special ground of the motion, numerous affidavits were submitted to the court, some of them supporting the ground, and others, in behalf of the state, tending to show that the circumstance referred to was not prejudicial to the accused, and also that two of defendant's counsel had knowledge of the irregularity before a verdict was rendered and while the case was still pending before the jury. It is uncontradicted that Burkhalter, the foreman, separated himself from his fellow jurors by leaving the jury room when they were considering a verdict, and that when he returned he brought with him a copy of the Penal Code of Georgia and proceeded to read to the jury from the Code upon a question about which there had been some difference among the jurors as to the charge of the court. The sections read by Burkhalter related exclusively to the punishment imposed in cases of assault with intent to murder when there was no recommendation, and to the right of the jurors to recommend punishment as for a misdemeanor in such cases.
This case differs from that of Lovett v. State, 60 Ga. 257, where it was held that the fact "that the jury had a copy of the Code in their room for a very brief time, which, without reading a single line, they sent out, is of no consequence," for in this case two sections of the Code were read by a juror and were discussed by the jury; and, had it appeared neither the defendant nor his counsel knew of this misconduct prior to the verdict, we should be inclined to hold this circumstance so presumptively prejudicial as to demand a new trial. While the contrary may always be made to appear, any departure from the orderly conduct which should characterize a fair trial must, prima facie at least, be presumed to have been prejudicial to the losing party.
However, the real point at issue upon the hearing of the motion in the instant case was as to whether the defendant's counsel knew of the misconduct of the jurors prior to the verdict and whether he did not waive the point by taking his chances upon a verdict of acquittal. Upon this point the testimony was in conflict. The testimony for the movant tended to show that, while counsel for the defendant had heard a rumor that the jury had a Code in their room, he did not in fact know that the statement was true, that he promptly called the attention of the court to this rumor, and the court ordered an investigation by the sheriff, and that counsel did not hear anything more of the matter. Had the court accepted this view of the evidence, it would be held that counsel for the defendant might naturally and reasonably have assumed that the rumor was groundless.
Movant's counsel testified by affidavit that upon the sheriff's return from the jury room that officer reported to the affiant that his information as to the jurors having a Code was incorrect, and for this reason counsel was not apprised of the actual facts as to the misconduct of the jurors until the jury that tried the case had been discharged. On the other hand, there was testimony on the part of the sheriff (merely negative it is true) that he did not remember telling counsel that the book had not been in the jury room and that he did not remember having any conversation with the defendant's counsel (Mr. Frizzelle) concerning the book one way or the other. However, there was also before the court an affidavit of one of state's counsel to the effect that he learned, in the morning after the case had been submitted to the jury the previous night, that one of the jurors had obtained a Penal Code during the night, and that about half past 8 o'clock of that morning he informed defendant's attorney of the fact that the jury had obtained a Penal Code during the night previous, and thereupon the defendant's counsel told him that he had already found out about it...
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