6 Ga. App. 403 | Ga. Ct. App. | 1909
The defendant was placed on trial for the offense of assault and battery. The jury were charged with the ease just about the time the court was on the point of taking a recess for dinner. The presiding judge inquired of the solicitor-general and of the defendant’s counsel as to what disposition should be made •in. regard to the verdict if the jury should agree before the judge returned from dinner. The defendant’s counsel stated, that he would not consent for the jury to return a sealed verdict, or for the jury to disperse and report their finding later; that the defendant might wish to poll the jury, and for that reason he would not agree to waive any of.his rights. The court thereupon instructed the sheriff not to permit the jury to disperse, but that if they agreed on a verdict the sheriff should inform the judge, who would come and receive it. In disobedience of the court’s order the sheriff permitted the jury to disperse; and some time after-wards, the recess having expired and the judge and counsel in the case having returned to the court-room, the judge inquired if the jury had made a verdict. One member of the jury replied that they had, and handed the indictment, with a verdict written on it, to the solicitor-general, and, over the defendant’s objection, both to the reading and the recording of the purported finding, the court caused it to be read and entered upon the minutes, and afterwards sentenced the defendant in accordance with it. Before the adjournment of the court the defendant filed a motion for new trial, which was later abandoned, and also filed a motion for his discharge upon the ground that he had once been placed in jeopardy. The motion for discharge was set for a hearing upon a later date, and amendments offered were permitted, but upon final hearing the court declined to grant the order discharging the defendant.
We think the prisoner was entitled to an absolute discharge. Our decision is controlled by the ruling in Nolan v. State, 55 Ga. 521 (21 Am. R. 281). It is clear that the verdict was a nullity, because, by the separation of the jury, the defendant was deprived of his right to poll the jury, if of no other right. Although the verdict is a nullity for the reason that the dispersal of the jury