Singleton v. State

• Decision Date: 15 May 1923
• Docket Number: (No. 14215.)
• Citation: 117 S.E. 670,30 Ga.App. 250
• Parties: SINGLETON v. STATE.
• Court: Georgia Court of Appeals

30 Ga.App. 250

117 S.E. 670

SINGLETON

v.STATE.

(No. 14215.)

Court of Appeals of Georgia, Division No. 1.

May 15, 1923.

(Syllabus by the Court.)

Error from City Court of Albany; Clayton Jones, Judge. '

W. C. Singleton was convicted of an offense, and he brings error. Affirmed.

Lippitt & Burt, of Albany, for plaintiff in error.

R. H. Ferrell, Sol., of Albany, for the State.

BLOODWORTH, J. [1-4] We will discuss the question dealt with in the second head-note only. One of the grounds of the motion for a new trial is in part as follows:

"After all the evidence had been submitted and the jury had retired to their room to consider said case, and a foreman of the jury trying said case had been selected, it was agreed by the jury that a majority vote should be taken and the verdict should be made on a majority vote of the said jury as to the guilt or innocence of the said defendant. A vote was then taken by the jury on the guilt or innocence of the defendant, and 6 jurors voted for the conviction of the defendant and 5 voted for acquittal (there were only 11 jurors, trying said case by consent), and without any further discussion of the case, or any further vote, and under the agreement previously made and agreed upon by the jury, a verdict of guilty of the charge against the defendant was made and signed by the foreman of the jury, and the jury immediately returned to the courtroom, and their verdict was read and published in open court, and the jury discharged. That said verdict of guilty in said cause is contrary to law, and illegal, null, and void, because said verdict was not based upon the unanimous agreement and opinion of the 11 jurors trying said case, based upon the law as given them in charge by the court and the evidence adduced upon the trial of said cause, and said verdict was not based upon a careful consideration of the law and the facts in said case, but was made upon an agreement entered into by the jury in advance of any consideration of the case, and was controlled by a majority vote, and not by the law and evidence and their opinion upon the same as to the guilt of the accused, which is shown by the fact that 5 jurors voted for acquittal and 6 voted for conviction, and no other vote was had upon said cause, and that said verdict was immediately after said vote (was) taken published in open court, and in support of this ground for motion for a new trial defendant attaches his affidavit hereto, marked Exhibit A, which establishes the truth of this ground, and for this reason defendant prays that said verdict and judgment be set aside and a new trial granted thereon."

What the effect of this ground would have been, had it been supported by proper and legal evidence, we are not called upon to determine, but must pass upon the ground as it is presented in the record. This ground is supported only by the affidavit of the movant. The information contained therein could not have been obtained by him except in one of three ways: (a) By the defendant having overheard the jury while they were in their room discussing the case, (b) By some other party having heard the discussion in the jury room and the information coming to the defendant through this party, (c) By a member of the jury after the trial having made the statement. In either event a new trial should not be granted on this ground. We will discuss the "three ways" above referred to in the order named:

(a) Movant does not claim that he heard the jury while they were discussing the case in their room. If he did hear him, he should have so stated in his affidavit, so as to show upon what the statement in the affidavit was founded. Even then, his motion for a new trial would not avail him, for if he did hear the jury; or some one else heard them and told him about it before the verdict was published, he should have demanded a poll of the jury when the verdict was read, as the defendant in all criminal cases has a right to do. See Tilton v. State, 52 Ga. 480 (2); Williams v. State, 63 Ga. 306; Russell v. State, 68 Ga. 785; Blankinship v. State, 112 Ga. 402, 37 S. E. 732. In Josey v. State, 148 Ga. 468 (1), 96 S. E. 1041, it is held:

"In order for the misconduct of a juror during the trial of a criminal case in which he is engaged to be cause for a new trial, it must affirmatively appear that the accused and his counsel did not know of the misconduct until after the verdict."

And a number of cases are cited to support this proposition. See, also, Sizer v. Melton, 129 Ga. 144 (11), 153 (11), 58 S. E. 1055; Roberson v. State, 15 Ga. App. 551, 83 S. E. 877. The object in allowing the jury to be polled is to ascertain whether or not they remain unanimous in their finding. The right to poll is lost if not taken advantage of before the jury trying¹ the case disperses. Barfleld v. Mullino, 107 Ga. 731, 33 S. E. 647; Rutland v. Hathorn, 36 Ga. 380; Smith v. Mitchell, 6 Ga. 458. The purpose of the ground of the motion for a new trial now under consideration is to show that the verdict is not the unanimous finding of the jury. If, because the jury has dispersed, a defendant Who does not know what happened in the Jury room loses his right to poll the jury, and thus ascertain whether or not their verdict remains unanimous, is not the reason stronger why a defendant, who professes to know at the time the verdict is returned that it was not unanimous, should not...