15 Ga. App. 690 | Ga. Ct. App. | 1915
The ruling stated in the headnote determines the only serious question in the case. Apparently there was no error in the refusal to grant a new trial upon the alleged newly discovered evidence, but we forbear to express any opinion as to this, because upon the new trial which, for the reason stated in the headnote, we feel constrained to grant, the accused will have the opportunity of submitting that testimony to the jury.
The evidence in the record fully warranted the verdict of guilty, but the werdict can not be held to have been demanded; and for that reason, since a grave irregularity must prima facie be presumed to have been prejudicial to the losing party, the trial judge should have granted a new trial upon the ground of the motion in which it is alleged that certain physical objects identified by witnesses as bearing upon the case (but which were not introduced in evidence) were, without the knowledge or consent of the defendant or his counsel, taken by the jury to the jury-room and retained by them during their deliberations. The verbiage of that ground of the motion is somewhat peculiar, and we attach some significance to the fact that there is in the motion no express statement as to whether the trial judge had knowledge that the articles alleged to have been stolen were sent to the jury-room, or whether they were sent without his knowledge or consent, though it is alleged that they were sent without the knowledge or consent of the defendant or his counsel. If it expressly appeared, from the allegations of fact in the exception as certified by the presiding judge, that the articles in question were sent to the jury-room without the court’s knowledge, the ease would undoubtedly fall clearly within the ruling in McCoy v. State, 78 Ga. 490 (4), 494, 499 (3 S. E. 768). On the other hand, as stated in Smith v. State, 14 Ga. App. 610 (81 S. E. 817), “Where physical objects are introduced in evidence without objection, the general rule is that any objection which could have been made will be held to have been waived.” If it had appeared that these articles, after having been identified, were taken to the jury-room with the court’s permission, after State’s counsel, in introducing them in evidence, had offered to tender them to
Though reluctant to set aside this verdict, supported by evidence and approved by the trial judge, the introduction of foreign matter before the jury is presumptively so prejudicial to that fair and impartial trial guaranteed by law that we are constrained to hold that the learned trial judge erred in overruling the motion for a new trial. Judgment reversed.