18 Ga. App. 402 | Ga. Ct. App. | 1916
Lead Opinion
We are becoming fairly 'familiar with this case, as this is its third appearance before this court. Practically all of the law involved was adjudicated by the former decisions of this court and the Supreme Court on the previous hearings. See Griffin v. State, 12 Ga. App. 615 (77 S. E. 1080), 15 Ga. App. 520 (83 S. E. 891); 143 Ga. 636 (83 S. E. 540, 55 L. R. A. (1915C) 716). So really the case has narrowed down to the question whether any reversible error was committed upon the last, trial. The only headnote of this decision which in our opinion needs elaboration is the fourth. It appears that one of the jurors was
In Atkinson v. State, 112 Ga. 411 (37 S. E. 747), it was held: “The fact that a juror is closely related to one acting as a partisan for the State in a criminal prosecution affords no ground of challenging such juror for cause.” By an examination of the original record of that case, on file in the office of the clerk of the Supreme Court, the following facts are disclosed: The defendant was arraigned in the city court of Eastman for the offense of assault and battery. He was convicted, and filed a petition for certiorari to the superior court. In his petition he alleged that “the court refused petitioner’s request to purge the jury as to relatives of W. B. Sapp and S. B. Coody, the reason for so requesting and the reason then and there given being that the said Sapp and Coody were actively engaged in assisting in the prosecution of said case, they not being attorneys, and although their names did not appear of record, nevertheless to all intents and .purposes being public prosecutors in the case, and then and there in the presence of the court and within the knowledge of the court assuming that róle and doing all possible to assist the solicitor of said, court in the prosecution of said case by assisting in the striking , of the jury, framing questions and suggesting witnesses, and in every other way possible for public or volunteer prosecutors to assist in the conduct of a legal investigation. Upon the call of the case the said Sapp and Coody left their seats in the audience, came within the bar, and took seats beside the solicitor, and proceeded to assist in the strike of the jury. This coming to the attention of petitioner, he made the motion to purge as above, which the court overruled, the vice of said ruling being that it left on the panel of jurors, from
All of the cases relied on by the defendant are clearly distinguishable by their facts from the instant case. In Lyens v. State, 133 Ga. 587 (66 S. E. 792), the relatives of the juror in the case had personally contributed to a fund that was used to employ an attorney to assist the solicitor-general in the prosecution of the defendant, and it was held that for that reason they would be considered as volunteer prosecutors, and that one related within the fourth degree to them was not competent, to sit as a juror on such trial. On the contrary, the instant case shows the following facts: Some of the depositors and stockholders of the bank met and appointed a committee of five to procure counsel to assist the solicitor-general in prosecuting the officers of the bank, and this committee employed for that purpose the law firm of Cobb & Erwin; that one of the depositors related to the juror had “several dollars” in the bank at the time it failed, and the other one had therein the large (?) sum of fifteen cents; that neither of the two depositors in question had any connection whatever with the employment of counsel to assist the solicitor-general in prosecuting the defendant, or consented for their funds on deposit in the bank to be used for such purpose; that they never attended any meeting of the depositors or stockholders of the bank, knew nothing of the employment of the above mentioned law-firm, never authorized the appointment of any committee by the depositors or stockholders to employ the firm, and never consented thereto or in any way rati
Upon the first arraignment of the defendant in this case, he pleaded guilty of the offense charged in the indictment, with the understanding, as he alleged, that he was to be sentenced as for a misdemeanor. The learned trial judge, however, not being a party to this “understanding,” the defendant was sentenced to the penitentiary, and on an appeal to this court the sentence was
Dissenting Opinion
dissenting. I respectfully dissent from my colleagues in the foregoing opinion.
It appears that the juror Autrey was related within the prohibited degrees to two of the depositors of the Athens Trust & Banking Company. The accused was placed upon trial upon an indictment charging a violation of section 204 of the Penal Code, as president of the bank, and it is admitted that two relatives of the juror were depositors, and, therefore, necessarily parties at interest in the affairs of the bank, and- that this was not known to the accused or his counsel. It was testified by the witness Barnett that the husband of one of the depositors was present at a joint meeting of the stockholders and depositors of the bank. The depositors and stockholders, through a committee, employed certain counsel to assist in, the prosecution of the accused, and said counsel were paid by the court through its receivers, out of the funds held by the court for distribution. One of the attorneys so employed testified: “My firm were not the attorneys for the receivers. We were employed by the depositors’ committee and the stockholders’ committee of the bank. I never had anything to do with those preliminary matters when the warrants were first gotten out against Griffin. I never came into the case until after the indictment was found. We hope our fee will be paid out of the receivership fees. We haven’t got anything to date.” It is clear from the above that the firm engaged to assist the solicitor-general in the prosecution of the accused was employed jointly by the stockholders and depositors of ,the bank, and that the money paid to counsel was paid out of the funds of the bank, in which the depositors were vitally interested.
The right of jury trial can not be too carefully guarded, and a proper administration of public justice requires that all jurors should be free from even the suspicion of interest, bias, or prejudice. It matters not that the juror so affected did not know of the disqualification. “On the trial of an indictment for mutilating and destroying the boobs of a corporation with intent to defraud and injure it, persons related to its stockholders within the prohibited degree are not competent to serve as jurors; and in determining whether or not a new trial should be granted to the accused because of relationship between jurors and stockholders, the fact that the former at the time of the trial were ignorant of any relationship between themselves and some of the stockholders is immaterial.” McElhannon v. State, 99 Ga. 672 (26 S. E. 501). In the case of Bank of the University v. Tuck, 107 Ga. 211 (33 S. E. 70), the court said: “Persons related within the prohibited degree to stockholders of a bank, or to others who are pecuniarily interested in the value of its stock, are incompetent to serve as jurors on the trial of an action brought by the bank; and where persons so related, without the knowledge or consent of the defendant, or his counsel, actually serve as jurors on such a trial, another hearing should be had notwithstanding ignorance on the part of the disqualified jurors of the fact that their kinsmen were, stockholders, or pecuniarily interested in the stock of the'bank.” Can there be any distinction between the disqualification of a juror related to a stockholder of a bank and that of a juror related to a depositor of a bank ? The assets of this bank were in charge of the court’s officers, and they belonged to the creditors of the bank, its stockholders and depositors. The receivers represented all the parties at interest, and the fee paid to counsel for the prosecution was paid out of the funds held by the court through its receivers, representing all the parties at interest. Surely there can be no difference in principle between the last two cases cited and the case at bar. In Beall v. Clark, 71 Ga. 818, it was held that a new trial should be granted because one of the jurors was a
It will be observed from a persual of McElhannon’s case that the corporation was not the prosecutor, and in the case at bar the corporation was not the prosecutor, but the rights of the depositors were at issue, and they as parties at interest were voluntary prosecutors. In Temples v. Central of Georgia Ry. Co., supra, Russell, C. J., citing Gormley v. Laramore, 40 Ga. 253, said: “Both interest and bias are disqualification propter affectum; and hence the subject of disqualification and its probable effect can be inquired into after verdict.” If the court can take cognizance of the existence of more than one motive, “and there is any uncertainty as to which interest, if any, may affect the juror, there is no less reason for his rejection than if his particular bias were clearly shown; the purpose of the law being to provide for a trial by jurors altogether impartial.” Temples v. Central of Ga. Ry. Co., supra. “A big part of the battle is the selection of the jury, and an impartial juror is the corner-stone of the fairness of trial by jury.” Melson v. Dickson, 63 Ga. 682, 686 (36 Am. R. 128). This principle is recognized in the case of Moore v. Farmers’ Mutual Ins. Asso., 107 Ga. 199 (33 S. E. 65).
If the accused was guilty as charged in the indictment, he certainly injured the depositors to whom this juror was related within the prohibited degree, and it seems to be well settled that the relationship which disqualifies a juror need not be a relationship to an actual party to the case, provided it be to one interested in the result of the case. Hnder the law the accused was deprived of a substantial right, a right which the law guarantees to him, and on account of the ineompetency of this juror the trial was nugatory.
Rehearing
The learned counsel for the plaintiff in error insist that this court, in rendering its decision of affirmance of the judgment of the lower court, must have overlooked the note of the judge set out on pages 309 and 310 of the record. The pertinent portion of the note is as follows: “There was no motion made touching the qualification or disqualification of the jurors by reason of being related to the depositors, or being depositors, and, the court not having been called upon to make any ruling thereon, and counsel for defendant and the State having acquiesced in permitting the jurors to stand aside who were related to depositors, and counsel for defendant having authorized the court and requested the court not to require those, jurors who had been duly drawn from the jury box, to serve as tales jurors upon the trial of said case, to come into court and make known to the court their relationship to the depositors; and for these reasons quite a number of said jurors were not required to come in court. During the progress of impaneling the’ jury to try said case, whenever it appeared that a juror was a depositor or related to a depositor, he was permitted to "stand aside on account of the acquiescence of counsel for defendant and the State without the court being called upon to make any ruling thereon.” In- deciding the case we carefully considered this note, hut did not view it in the same light as that in which counsel for the defendant evidently saw it. In our opinion, this note plainly shows that the defendant, by his counsel, upon the trial, waived the question of whether the tales jurors who were put upon the jury, among whom were the two jurors related to depositors, were so related. This being true, the accused will not be heard, after the trial, to raise the very point that he expressly waived upon the trial.
Motion for rehearing denied.