Smith v. State
| Decision Date | 26 June 1907 |
| Docket Number | (No. 488.) |
| Citation | 3 Ga.App. 574,59 S.E. 311 |
| Court | Georgia Court of Appeals |
| Parties | SMITH. v. STATE. |
Criminal Law—New Trial—Disqualification of Juror.
While, upon the hearing of a motion for new trial (where the sole ground of the motion complains that a member of the jury which convicted the accused was related by affinity to the prosecutor within the prohibited degrees, and upon hearing affidavits were introduced supporting and disputing this ground), the trial judge is the trior of the facts in controversy, and this court will not control his decision as to the credibility of the witnesses, still, where all the evidence adduced upon the subject of relationship showed the juror to be related to the prosecutorwithin the ninth degree, a new trial should have been granted.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3070.]
(Syllabus by the Court.)
Error from Superior Court, Oglethorpe County; H. M. Holden, Judge.
Bryant Smith was convicted of arson, and brings error. Reversed.
Sam L. Olive and Paul Brown, for plaintiff in error.
David W. Meadow, Sol. Gen., and Sibley & McWhorter, for the State.
The plaintiff in error was convicted at the April term, 1906, of the offense of arson. His motion for new trial was refused, and the judgment of the lower court was affirmed by the Supreme Court. Smith v. State, 125 Ga. 296, 54 S. E. 127. Thereafter, on October 17, 1906, he filed an extraordinary motion for a new trial, upon the ground that one of the jurors who rendered the verdict finding him guilty was disqualified by relationship to the prosecutor. This motion was overruled on March 14, 1907, and upon the judgment denying a new trial error is assigned.
Affidavits were properly submitted by the movant showing that the juror Webb was related by affinity to the prosecutor, Mr. Pittard, within the prohibited degrees, and a counter showing establishing, a more distant degree of relationship was made by the state. If the evidence submitted by the state on the hearing before the lower court had shown that there was no kinship, or that the relationship between the juror and prosecutor was within and beyond the prohibited degrees, we would have no difficulty in affirming the judgment refusing a new trial. Upon the authority of the decision in Buchanan v. State, 118 Ga. 751, 45 S. E. 607 (9), "where a ground of a motion for a new trial complained that a member of a jury, which convicted the accused, was related by consanguinity to the prosecutrix within the prohibited degree, which fact had been discovered by the accused since the trial, and upon the hearing of the motion affidavits were introduced to support this ground, and the state introduced affidavits to the effect that no such relationship existed, this court will not interfere with a finding by the trial judge, upon the issue of fact thus made, adverse to the contention of the accused." But the affidavits presented by the state on the hearing of the motion, instead of contradicting and disproving movant's contention that the juror Webb was disqualified, themselves established the juror's disqualification. A juror related by consanguinity or affinity to either party to a cause within the ninth degree is disqualified from sitting in the case. This was expressly decided in Ledford v. State, 75 Ga. 857, and our examination has failed to discover any ruling in this state to the contrary. According to the evidence for the state, the juror Webb was related to the deceased wife of Pittard, the prosecutor, in the ninth degree, and several living children of Pittard and his deceased wife continue the kinship by affinity. According to the movant's showing, the juror Webb was a great grandson of David Barrett, who was a brother of Benjamin Barrett, Mrs. Pittard's grandfather. If we apply the diagram illustrative of lineal and collateral consanguinity prepared by Blackstone (2 Bl. Com. 203), we find that Webb and Mrs. Pittard were related in the seventh degree by the civil law, and in the fourth degree by the canon law, adopted by use as part of the common law:
W. H. Webb (juror), son.→1.Mrs. Webb, nee Leonora Barrett, daughter.→2.Abel Barrett, son.→3.David Barrett, son.→4.Common ancestor, name unknown.→5.Benjamin Barrett, son.→6.Harrison Barrett, son.→7.Mrs. Pittard. daughter, wife of prosecutor.
According to the state's counter showing, the juror and the prosecutor's wife were related in the fifth degree by the canon law, and within the ninth degree by the civil law; the relationship being exactly the same as that subsisting between Richard III and Henry VII, used by Blackstone as an example. The following diagram shows the relationship as evidenced by the testimony for the state; the Roman numerals indicating kinship by the canon law, and the Arabic figures the relationship by the civil law:
W. H. Webb Juror.→1.Mrs. I. H. Webb, nee Leonora Webb, daughter.→2.Abel Barrett son.→3.David Barrett son.→4.Barrett.→5.Barrett.Common ancestor.→6.Barrett, son.→7.Benj. Barrett, son.→8.B. H. Barrett, son.→9.Mrs. Pittard, daughter of prosecutor's wife, nee Mary Ida Barrett.
"The method of computing these degrees in the canon law, which our law has adopted, is as follows: We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other." 2 Bl. Com. 206. The degree of relationship which will disqualify a judge from sitting in a case is fixed by our Civil Code (Civ. Code 1895, § 4045), and as ruled in Short v. Mathis, 101 Ga. 286, 28 S. E. 918, is to be ascertained by the canon-law rule; but the quantum of kinship on the part of a juror which will disqualify has not been defined by statute in this state. Pen. Code 1895, § 973, recognizes kinship as a ground of challenge for cause: "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 either of the following objections: * * * (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 upon the jury." But the decree of kinship which will disqualify is not declared in terms. So far as we are aware, however, the rule announced in the Ledford Case has never been questioned. It was cited with approval in McElhannon v. State, 99 Ga. 680, 26 S. E. 501. In Roberts v. Roberts, 115 Ga. 261, 41 S. E. 616, 90 Am. St. Rep. 108, Justice Cobb, after referring to Am. & Eng. Enc. L. (2d Ed.) 1124, where it is said that, while at common law originally relationship in any degree by consanguinity or affinity worked a disqualification of the juror, later writers state that the relationship must be within the ninth degree, calculated according to the civil law rules. He then quotes with approval from the Ledford Case: "The juror was disqualified, being a third cousin and within the ninth degree"—and states that it is supposed that the ninth degree referred to is to be "calculated by the rules of the civil law, and not by the rules of the canon law, which are of force in this state in reference to matters of inheritance." But it matters not whether the degree of relationship be computed according to the civil law or the canon law; in neither event was Webb, the juror, qualified to try this case.
The degree of relationship to a party which will disqualify a juror is not the same as will disqualify a judge. At common law favor was not presumed in a judge, while Originally the presumption as to a juror was that any relationship whatever, either by affinity or consanguinity, would disqualify a juror; this rule being later modified so that the disqualification by reason of kinship extended no further than to include the ninth degree. The limitation of the disqualification of judges to cases where one or more of the parties to the cause may be of kin within the fourth degree was the adoption of an arbitrary rule by statute, regardless of the common law, while the rule as to the disqualification of jurors, in the absence of legislation on the subject, is the common law. The relationship of a party to a judge is ascertained by the rules of the canon law, because of the adoption, as stated by Blackstone, of the common-law rule. But it matters not in this instance whether the degree of relationship be computed according to the civil or the canon law; in neither event, under the evidence submitted, was Webb a juror qualified to try this case. Counsel for defendant in error virtually concede this by putting the stress of the case on the proposition that, even if the juror was disqualified, it was not properly an extraordinary ground for new trial, and affords no sufficient reason for the grant of an extraordinary motion. The argument in support of this contention is drawn from the decision in Cox v. Hillyer, 65 Ga. 57 (2), in which it was held: ...
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