5 Ga. App. 43 | Ga. Ct. App. | 1908
In the court below the defendant was convicted upon an accusation of the offense of gaming. He moved for a new trial, upon the general grounds, and also upon the special ground that the prosecutor in the case entered the jury room while the jury were considering their verdict, and delivered to them a pack of playing cards.
While all the evidence of the defendant’s guilt is circumstantial and the case against him weak, still, under our ruling in the case of Griffin v. State, 2 Ga. App. 534 (58 S. E. 781), we can not say a verdict of guilty was unauthorized by the' evidence:
The more serious question in the ease is the special ground, from which it appears that the prosecutor went into the jury room and gave them, 'for use during their deliberations, a pack of playing cards which some of the witnesses had testified was the pack used by the players in the game in which it was alleged the defendant participated, some of these cards being the cards which witnesses testified they saw the defendant handling and shuffling. According to the record, a pack of cards was identified during the introduction of the testimony, but they were not tendered in evidence or admitted by the court. It is not a case, therefore, where a part of the evidence, which had been properly tendered and admitted, but inadvertently had been left in the courtroom, was thereafter delivered to the jury. But even if the pack of cards had been properly in evidence and the court had desired that they be delivered to the jury, the sheriff in the present instance, being the prosecutor, could not act as the officer of the court for this purpose. He was disqualified to act as sheriff during the, trial of this case. The jury can not properly be put in the charge of the sheriff while trying a case in which he is prosecutor. The testimony in behalf of the movant, in support of this ground, was, that after the jury had been out for some time, he saw the prosecutor go into the jury room, where the jury were, with the case under consideration, and close the door behind him and remain in the room about ten minutes.
We think this unauthorized introduction of foreign matter before the jury, and unwarranted interference with their deliberations, on the part of the prosecutor, requires the grant of a new trial. The highest public policy and the maintenance of the purity of our jury system demand that the verdict of the jury shall not only be untainted by illegal, improper, and prejudicial influences, but even that it shall be above suspicion. Where gross irregularities are shown, the presumption arises that the. injured party has been prejudiced thereby, and it devolves upon the party gaining the verdict, at least, to demonstrate unequivocally that it was not in the slightest degree affected by the incident which marred the legal harmony of an orderly trial. We apprehend this to be the rule in civil and criminal cases alike, but certainly if the •rule is to be relaxed, its observance is less important where only property rights are concerned than where the liberty of the citizen is involved. As held in Killen v. Sistrunk, 7 Ga. 283 (2), “if a paper not in evidence be delivered to the jury by design, by the party in whose favor the verdict is returned, the verdict will be set aside, even if the paper is immaterial.” Judge Lumpkin, delivering the opinion in that case, cites the case of Sargent v. Roberts, 1 Pick. 337 (11 Am. D. 185), and says, “The case of Sargent v. Roberts is a strong illustration of the solicitude with which every statement or communication with the jury, not made in open court and in the presence or with the knowledge of the parties or their counsel, is excluded. A new trial was granted, because the judge, after the court was adjourned, wrote a letter to the jury, respecting the cause which had been committed to them,