9 Ga. App. 162 | Ga. Ct. App. | 1911
Lead Opinion
George Ball was convicted of robbery, and sentenced to imprisonment in the penitentiary for twenty years. His motion for a new trial was overruled, and he brings error.
The evidence showing the commission of the crime was clear, strong, and uncontroverted. There is some evidence which identifies the defendant as the criminal, consisting of the rather uncertain opinion of the person who was assaulted and robbed that the defendant was the man who assaulted and robbed him, and slight circumstances of corroboration. The jurors believed this evidence sufficient, and this conclusion must be accepted by this court. We do think, however, that the evidence as to identity was weak and unsatisfactory, and for this reason we have more readily come to the conclusion that a new trial should be granted because of a colloquy between the trial judge and the jury which, we think, was a violation of the spirit, if not the letter, of the Penal Code (1910), § 1058.
.After the jury had been out some time considering the case, the judge had 'them brought back into the court-room and said to them: “I had you brought in, gentlemen, because you sent me word that you were not likely to agree. I thought, if I had you brought in, perhaps you might ask me some question. Does any juror wish to ask the court any questions? Tf so, do so.” A juror answered: “I
We think that it is a.dangerous practice, and one of very doubtful propriety from a legal standpoint, for the judge to ask the jury in a criminal ease how it stands; and, where the evidence of guilt is weak, the practice becomes pernicious; it is presumptively hurtful when, on information that the jurors stand eleven to one, the trial judge even remotely suggests to the one juror that he ought to surrender his conviction to that of the majority. A juror is usually so responsive to any suggestion made by the judge as to his duty in the trial of a ease, or in the consideration of the evidence, that the judge should be careful not to say anything that could possibly be construed by any member of the jury as indicating that it would be proper for him to yield his personal views of the evidence and shift his individual responsibility to the majority. Whatever.differ
When the judge told the jury in this case that, where the jury stands eleven to one, the one juror usually come to the eleven, this one juror, who doubtless in this case was for acquittal, may probably have inferred that this declaration by the judge as to the usual conduct of the one juror could be properly followed by him, and that he should abandon his conviction or doubt as to the guilt of the defendant and agree with the other eleven. This is a very rational deduction from the language of the judge, and the reasonableness of this deduction is strengthened by the fact that the jury had been considering the question for some time before the colloquy with the judge, without being able to come to a unanimous conclusion, but that very soon after the colloquy took place a unanimous verdict was returned. ,.
As before intimated, if the evidence in this ease were strong and clear as to the identity of the defendant as being the criminal, we should probably treat the statement of the judge as harmless error; but as the evidence on the question of identity is not entirely satisfactory, and, in addition to this, the defendant proved by well-known white citizens that his character was good, as a law-abiding colored man, we are constrained to believe that the statement of the judge to the jury that “usually the one juror comes to the eleven” was sufficient in all probability to have encouraged the one juror to abandon his individual views and convictions, and, in deference to the intimation expressed by the judge, to agree with the eleven.
Judgment 'reversed.
Concurrence Opinion
concurring specially. Irrespective of the divergent views of my colleagues on the question of identity, I am firm in the opinion that the judgment refusing a new trial should be reversed on account of unjustifiable influence on the part of the court, and of my conviction that the remarks of the judge tended to unduly influence the juror who was in the minority. I consider that the
Dissenting Opinion
dissenting. I can not concur with my associates. To my mind the evidence identifying the accused as the robber is not weak at all, but is exceedingly strong. While the person who was robbed, and who on the witness stand identified the accused as his assailant, was not personally acquainted with the accused, still he walked alongside of him and talked with him for nearly a mile before the assault was made. Immediately after .the robbery the victim described the robber, and the accused answered that description. A little later the accused was arrested, and, being brought before the victim, was promptly identified. He then bore on his face scratches received in some recent scuffle. His shoes fitted the tracks found at the scene of the robbery. ' He had been seen to go in the direction of that place shortly before the robbery occurred. The victim, as a witness, stated that he was positive that the man on trial was the man who assaulted him, that there was not only an identity of ordinary physical marks, but that the robber had an impediment in his speech such as the accused had. I have not the slightest doubt of the guilt of the accused.
I can not concur in the view that the remarks of the judge were either prejudicial or improper. I think it is highly expedient and altogether lawful that the trial judge and the jury should frankly and fully confer with each other as to the prospects of a verdict being arrived at, when the jury has been out such a length of time as to indicate the probability of one of those irreconcilable disagree
Hence, I dissent.
