Walter Lee Henderson was indicted, tried and convicted for murder and carrying a pistol without a license. He received a life sentence, with 12 months probation on the pistol charge.
Evidence presented at thе trial showed that the defendant shot the victim, Curtis Lee, two times early in the morning of August 14, 1982, outside Jones Cafe near Arlington, Georgia. At trial, the *399 defendant claimed he shot the victim in self-defense. On appeal, defendant raises two enumerations of error. Because we reverse, there is no need to set forth the facts at length other than to say that the evidence was sufficient to authorize the jury to find the defendant guilty.
1. In his first enumeration of error, the dеfendant contends that the trial court erred in limiting voir dire of the jurors by refusing to allow the defendant to ask the panel whether members of the jurors’ immediate families had ever worked for law enforcement agencies.
Hе correctly points out that the right to a jury trial is guaranteed by both our state and federal constitutions. As was said in
Bradham v. State,
The right in criminal cases to examine each prospective juror in order to secure an impartial jury is set out in the Code at OCGA § 15-12-133 (Code Ann. § 59-705), which provides in part: “In the examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any mattеr or thing which would illustrate &ny interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.” (Emphasis supplied.)
This Cоde section is a source of concern to our trial judges, both because of the method of examining prospective jurors it authorizes and because of the scope of such examination. We deal hеre with the latter aspect. One difficulty as to the scope of examination is that the Code section is written in general terms.
Illustrative of such generality and the problems it causes, is
Frazier v. State,
It should be kept in mind that the larger purpose of the Code section is to enable counsel to identify those prospective jurors counsel desires to remove from the panel by use of peremptory strikеs *400 as opposed to challenges for cause.
Referring to this Code section in
Bethay v. State,
Accordingly, it has been held not to be error for the court to refuse to allow defense counsel in criminal cases to ask questions concerning the law and its application to the case on trial, specifically the presumption of innocence,
Pinion v. State,
Questions seeking to test the prospective jurors’ willingness to accept defenses have been disallоwed and upheld on appeal,
Holloway v. State,
Similarly, it has been held not to be error for the court to refuse to allow defense counsel to ask irrelevant questions,
Curtis v. State,
supra, 224 Ga. at (2) (whether the juror would favor legalized gambling, parimutuel betting and sale of whiskey);
Frazier v. State,
supra,
By the same token, it has been held not to be error for the court to refuse to allow defense counsel to ask prospective jurors concerning their service as jurors in other cases,
McGinnis v. State,
On the other hand, it has been held to be error in a drug case to refuse to allow defense counsel to ask: “Have you or any member of your family ever been a victim of a drug transaction?” and “Has any member of your family ever had any problems with drugs?”
Craig v. State,
supra,
In Falsetta v. State,
Therefore, in the case before us it wаs error not to allow the defendant to pose this question to the jurors. We reach this conclusion in part because of the limitations, discussed above, upon asking questions concerning the law and its applicatiоn to the case on trial.
We acknowledge that the question whether members of the jurors’ immediate families had ever worked for law enforcement agencies is not related to the “specific” or “particulаr” suit being tried. Rather, it relates to the type or nature of the suit being tried, to wit: a criminal case. We find that
Hill v. State,
supra,
2. The state contends, alternatively, that the defendant has failed to show that any jury members who decided the case had any relatives who were or had been law еnforcement officers, and thus, the defendant has failed to meet the burden of showing harm. The state cites
Roach v. State,
In
Roach v. State,
supra,
In the area of voir dirе examination of prospective jurors, the case of
Durham v. State,
Some of the cases express the rule thusly: “It is no answer to the violation of thе mandatory rule to say that the record does not show any harm to have resulted to the defendants because of this error, since it has been held in numerous cases that, whenever the rights of a party are withheld or violated, the presumption of law is that he has been injured unless the contrary plainly appears.”
Poultryland, Inc. v. Anderson,
Applying
Poultryland,
supra, in another civil case, yet one related to voir dire, in
Hill v. Crowell,
From the foregoing, we conclude that where a defendant in a criminal case has been deprived of his or her rights under OCGA § 15-12-133 (Code Ann. § 59-705) to examinе prospective jurors on voir dire, the burden is on the state to show that the error was harmless. Accord,
Thomas v. State,
In an effort to show that the errоr was harmless, the state urges that the defendant was allowed to ask prospective jurors whether they were related to the district attorney or his staff or to prosecution witnesses. They were also asked whether thеy (personally) were or ever had been employed by law enforcement agencies. However, the Chief of Police of Arlington, the first officer to arrive on the scene, was the state’s first witness, and an employee of the sheriffs department testified as to an incriminating statement given by the defendant. The defense was self-defense. The evidence showed that the defendant was stabbed before the shots were fired. The defendant rеmained at the scene of the shooting until the police arrived and he was not placed under arrest that night. We do not find that the state has shown that it is “highly probable” that the limitation on voir dire was harmless error.
Johnson v. State,
3. There is no error, as contended by the defendant, in refusing *404 to charge in the exact language requested on the law as to circumstantial evidence because the jury was instructed as to the applicable principles of law.
Judgment reversed.
Notes
In cases in which the death penalty is sought, questions concerning the jurors’ convictions regarding capital punishment are required by Witherspoon v. Illinois,
Of course, it is error to refuse to allow counsel to ask questions expressly authorized by the Code section (e.g., jurors’ relationship or acquaintance with the district attorney: jurors’ memberships in religious, social and fraternal organizations).
Cowan v. State,
We deal here with an error under state law, as opposed to an error under the U. S. Constitution. Regarding constitutional errors, the burden of showing that the error was harmless, beyond a reasonable doubt, is upon the state. Chapman v. California,
In other areas, the following cases put the burden of showing harm on the appellant:
Carpenter v. Forshee,
The following cases find that the appellant is not under any burden to show harm:
Poultryland Inc. v. Anderson,
supra at 562;
Montos v. State,
The burden the state must meet is the “highly probable” test set forth in
Johnson v. State,