152 Ga. 405 | Ga. | 1921
At the hearing of the motion for new trial the State by way of counter-showing submitted certain affidavits as follows: Daniel Gaskins Sr. testified that he was the same person who made an affidavit in this case to be used as a part of the amended motion for new trial. In addition to his testimony already incorporated in the affidavit referred to, he testified further that no one of counsel representing the defendant nor Robert Merritt himself, at any time during the trial of the case, when he was in attendance at the court during any stages in the trial, inquired of him as to the relationship between the juror, Amos Meeks, and Dru'cilla Harper, wife of David Harper, the prosecutor. Walter Jowers and J. C. Rawlins, in separate affidavits but using exactly the same language, each testified as follows: “ I was present at Douglas- in the County of Coffee of said State of Georgia during the October term, 1920, of the superior court of said county, and was present in said court during all of the trial in the case of the State of Georgia versus Robert Merritt, who was charged with murder for the killing of Walter Harper, which trial resulted in a verdict of guilty, with a recommendation of life imprisonment. I was present when the jury which tried said case was selected, chosen, and sworn; and on account of the large relationship which existed in the county, between David Harper, the prosecutor in said case, and Robert Merritt, defendant, Mr. John Hall and Mr. Daniel Gaskins, who are among the oldest residents of Coffee
This ground of the motion for new trial, being based on evidence as to disqualification of the juror, discovered after rendition of the verdict, must be determined under application of the rules laid down in the code and set forth in the sixth headnote. The rule provides that “ it must appear by affidavit of the movani and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” The evidence above stated shows that the movant made out a prima facie case. It showed that the juror Amos Meeks was related to the wife of David Harper, the prosecutor, in the 8th degree, according to the rules of the civil law, by marriage, .which would disqualify the juror; the rule being that the relationship of a juror within the 9th degree to the prosecutor will disqualify. The evidence also showed that neither the defendant nor his'counsel knew of the existence of such relationship between the juror and the prosecutor until after the verdict. It is mainly contended by the State that a new trial should not be granted, because the defendant could have discovered the relationship which formed the basis of the disqualification of the juror, prior to the verdict, by the exercise of ordinary care. But under the circumstances as to the remoteness of the relationship between the several parties, as disclosed by the evidence above set forth, and the circumstance that the defendant’s counsel called upon the witness Daniel Gaskins. Sr. (who the State says, was supposed to have known the relationship of the several parties) for the information touching relationship of all jurors either to the prosecutor or to the defendant, and was not informed by him that this juror was related, and the circumstance that while on the voir dire, in answer to the direct question by defendant’s counsel, the juror himself stated that he was not related to the defendant or the prosecutor, it cannot be said that the failure to discover the disqualification óf the juror was due to the want of ordinary care upon the part of the defendant or his counsel. The evidence discloses a bona fide effort to
Judgment reversed.