12 S.E.2d 108 | Ga. Ct. App. | 1940
Where, during the trial of a criminal case, misconduct of a juror is shown, the presumption is that the accused has been injured, and the burden is on the State to remove such presumption by proper proof; and where the burden is not carried by the State, the overruling of a timely and appropriate motion to declare a mistrial is error.
In Shaw v. State,
The decision in the Shaw case, supra, was cited approvingly in Styles v. State,
Applying the foregoing decisions to the facts of the instant case, we think the court erred in overruling the motion for a mistrial. The misconduct of the juror and of the widow of the deceased, while not gross, was sufficient ground for a mistrial. Neither the trial judge (as he frankly stated in his order overruling the motion) nor this court can know whether the conduct of the wife of the deceased, in shaking hands with the juror and inquiring how he and his wife were getting along, aroused his sympathy for her and influenced his conduct, but we think it was calculated to have such effect. The cases cited in the brief of counsel for the State are distinguished by their facts from this case. In most of them the evidence as to the misconduct of the jurors was conflicting, while in the instant case there was no such conflict. The error in overruling the motion for a mistrial rendered nugatory the further proceedings in the case.
Judgment reversed. MacIntyre and Gardner, JJ., concur.