118 Ga. 21 | Ga. | 1903
The accused was tried in Gordon superior court, upon an indictment charging a misdemeanor. After the evidence .was all in and the court had delivered its charge, the jury retired, made up their verdict, signed the same by their foreman, and returned to the court-room to deliver it in open court. The accused had previously given bond for his appearance in court and. to abide-the judgment that might be rendered. When the jury returned to the court-room with the verdict he was not present, but his counsel offered to waive his presence, and asked that the verdict be-received. This the court refused to allow, and passed an order declaring a mistrial and discharging the jury; to which the accused excepted. The bill of exceptions recites that the court “ immediately permitted the solicitor-general to forfeit the bond given .by the defendant, . . to which ruling . . the defendant excepted and now assigns the same as error.”, It also appears that during the same term of court the accused moved the court to set aside the forfeiture and grant an order acquitting him of the offense of which he was charged. This motion recites that the verdict agreed -.upon by the jury was one finding the accused not guilty. The overruling of this motion is also assigned as error in the bill of exceptions. As part of the record material to a clear understanding of the alleged errors complained of, the plaintiff in error specifies “ the verdict of said jury as made on said indictment,” and in the record sent to this court appears what purports to be a verdict finding the accused not guilty.
On the other hand, it has been as often ruled that where, at the time of the rendition of the verdict, the accused is voluntarily absent from the court-room on bond, he can not complain if the verdict is rendered in his absence. Judge Bleckley, in the Nolan case, supra, clearly'draws the distinction between the two classes of cases. There is, as is there pointed out, a strong reason for the difference, because, if the verdict could not be received during the voluntary absence of the accused, it would be possible for one by his own voluntary act to indefinitely postpone the rendition of a verdict in his case. In the language of Chief Justice Jackson in the Barton case, supra, “From the charge of the court, from the countenances of the jury, from the course of the argument, from the hints or misgivings of counsel, from information leaking out of the jury-room, the defendant might see that the jury would convict him, and absent himself until the verdict was rendered, and thus have its rendition made entirely nugatory by his own act. The forfeiture of the bond is nothing Appearance at the next term would save his bail, and trivial costs only would be the penalty paid, while the whole case must be tried again or the defendant discharged altogether. A second trial at the next term could be made at his option to result in the same way at the same trivial costs, and so on ad infinitum.” In the case of Robson v. State, 83 Ga. 166, when the verdict was brought into court the accused was at large on bond and was voluntarily absent. His counsel, as did counsel in the case at bar, waived his presence and consented to the reception of the verdict. It was held: “ When one on trial for a felony is at
As will have been observed, this case presents one anomalous feature, which renders extremely difficult a logical disposition of the question presented for determination. Strictly speaking, the verdict- is still within the minds of the members of the jury empaneled to try the case, as it was never received by the court, and hence could not properly go on record; and yet we have before us what purports to be a record of the verdict rendered by the jury. We have it, however, from the certificate of the trial judge to the truth of the recitals of fact in the bill of exceptions, and from the alleged record which was by him ordered to be sent to this court, that had .the verdict been received it would have resulted in the acquittal of the accused. As has been seen, the refusal to receive the verdict, and the order declaring a mistrial,' are held to have been erroneous ; and direction is therefore given that the order declaring .a mistrial be set aside, and that the verdict which appears from the record to have been agreed upon by the jury and fully written out and duly signed by its foreman, and returned into court, be entered Upon the minutes of the court nunc pro tunc, and the accused discharged.
Judgment reversed, with direction.