Shaw v. State

• Decision Date: 20 May 1889
• Citation: Shaw v. State, 83 Ga. 92, 9 S.E. 768 (Ga. 1889)
• Parties: SHAW v. STATE
• Court: Georgia Supreme Court

9 S.E. 768

83 Ga. 92

SHAW v. STATE

Supreme Court of Georgia

May 20, 1889

Error from superior court, Butts county; BOYNTON Judge.

A. D Hammond, J. W. Thurman, and L. L. Ray, for plaintiff in error.

E Womack, Sol.Gen., for the State.

SIMMONS J

Thomas Shaw was tried and convicted upon the charge of murder.He made a motion for a new trial upon the several grounds therein, which motion was overruled and he excepted.The main grounds relied upon before us for the reversal of the court below in refusing a new trial were the sixth and seventh grounds of the original motion, and the first of the amended motion, which are as follows: "(6) Because the jury while the case was pending, went to church at night.(7) Because said jury, while at church at night, heard the prosecutor in said case talk and shout; also heard a prayer in reference to the execution of the law and the maintenance of justice.""(1) That said jury attended the Baptist Church in a body, and while there was addressed by the prosecutor in said case, and was exposed to the crowd going to and from the church."These grounds were certified to by the trial judge, "with reference to the affidavits to sustain and rebut the same," which appear in the record.These affidavits show, in substance, that pending the trial, and after the argument to the jury had begun, night came on, and the court took a recess until the following morning, and instructed the bailiff who had charge of the jury, and the jury themselves, not to allow any one to speak to them, or to speak in their presence, about the cause, nor to discuss it among themselves, until the argument in the case was concluded; that during that night the bailiff took the jury from the jury-room (where he was ordered to keep them) to a church where a prayer-meeting was being held, conducted by the pastor, who was the active prosecutor in the case; that, upon their arrival at the church, the prosecutor, Mr. Hooten, politely assigned the jury to seats in the church, separate and apart from the congregation, and that he addressed the jury.The affidavits further show that upon the termination of the exercises the jury left the church, and mixed with the crowd, some of the congregation going out before and some after the jury.The state introduced a number of affidavits to show that, while the jury attended the meeting at the church, they were given seats wholly apart from the congregation, and that no reference was at any time made to "any law case whatever;" that they left the church in a body, in charge of the bailiff, without mixing with the crowd, and without any person having any opportunity to have a conversation with them, either while they were at the church or when they were leaving it; and that the prayer to which reference is made in the seventh ground of the motion made no further reference to the court and jury in said case than to ask "that the blessings of God might rest upon our government, with its officers, and that God would bless the officers of the court then in session, that they might be guided aright in the discharge of their duties."The bailiff, who was in charge of the jury, made an affidavit that, during the trial, no one spoke of the case in the presence of the jury, and that nothing was said about the prisoner in their presence; that he was careful to guard them, and, not thinking it was improper, had gone with them to the prayer-meeting; that on their way to and from church they did not separate, nor was anything said to them, or any of them, or in their presence, about the case; and that at the church they were seated apart from the congregation, and that the usual services were held, and nothing was said about the case.The jurors also made affidavits, in which they say that they attended the prayer-meeting in a body, and did not disperse or separate; that they were provided with seats together, apart from the rest of the congregation; that the services were such as are usual at prayer-meetings, and that nothing was said by any one in their hearing, during, after, or before the services, directly or indirectly, about the case on trial, or about any one connected with the case; that they were not approached by any one at any time with a view of influencing their verdict; and that their verdict was not in any way influenced by the act, presence, or words of any persons present at that time, or at any other time, outside of the testimony in the case, but that their verdict was made up calmly and dispassionately from the testimony as they understood it.The trial judge, after hearing these affidavits, overruled the motion for a new trial.

1.The effect of this judgment was that in his opinion the state had shown beyond a reasonable doubt that the defendant was not injured by the misconduct of the bailiff and the jury.The law in this state is that, 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 this presumption by proper proof.When the trial judge has decided, as in this case, that the state has removed that presumption, and has shown that the defendant was not injured by the misconduct of the jury, reviewing courts are loath to interfere with his finding upon that subject.This court however, has in several cases reviewed and reversed the decision of the trial judge upon this subject, notably in the case of Obear v. Gray,68 Ga. 182.So it is not the rule in this state, as it is in some others, that the decision of the trial judge upon this question will not be reviewed or reversed.The only trouble we have had in coming to...