166 Ga. 213 | Ga. | 1928
1. A defendant in a criminal case who has been convicted has the legal right to demand a poll of the jury. The demand should be made after the verdict is read, but before dispersion of the jury. Malone v. State, 49 Ga. 210 (11) ; Tilton v. State, 52 Ga. 478. It will be too late if not made until after the sentence of the court has been pronounced. Robinson v. State, 109 Ga. 506 (8) (34 S. E. 1017) ; Davis v. State, 22 Ga. App. 802 (97 S. E. 273). A ground of the motion for new trial alleged that the verdict was returned and published, and that the court immediately dismissed the jury and passed sentence on the defendant without affording him an opportunity to poll the jury. The court refused to approve this ground in its entirety, and appended a note which stated that after the verdict was received and read the court proceeded to give certain directions to the officers of the court, which consumed about five minutes before dismissal of the jury, during which time the attorney for the defendant was present and made no demand or request to have, the jury polled, and there was nothing to prevent the attorney from making the demand if .he desired to do so. Held, that there is no merit in this ground of the motion.
2. In the course of his argument before the jury the solicitor-general stated: “Gentlemen of the jury, this defendant, his mother, wife, and child out in the anteroom were posing for a picture for the newspaper, and the newspaper men were being lined up for their pictures.” The defendant’s attorney made a motion for a mistrial on the ground that the argument was not authorized by the evidence, and was improper and prejudicial. The court remarked, “Well, the court does not see how it could prejudice the defendant’s rights whether he has his picture made or whether he did not.” Hollowing this remark the solicitor-general stated: “Your honor, if he . . objects to it I withdraw it.” The defendant’s attorney immediately objected to this remark. The court overruled the motion for a mistrial, but instructed the jury as follows: “Well, the court does not see how it could prejudice the defendant’s rights whether he has his picture made or whether he did not. Gentlemen of the jury, you would not allow any remarks of counsel to influence your verdict one way or the other, any remark that is not based upon the evidence in this case, if such have been made. I do not know what the remarks were. If counsel in his argument made any reference to a matter not in evidence, you will disregard it.” Held, that there was no error in refusing to declare a mistrial.
3. The evidence was sufficient to support the verdict.
Judgment affirmed.
