83 Ga. 92 | Ga. | 1889
Thomas Shaw was tried and convicted upon the charge of murder. He made a. motion for a new trial, upon the several grounds therein, which motion was overruled, and he excepted. The main grounds relied upon before us for the reversal of the court below in refusing a new trial, were the 6th and 7th grounds of the original motion, and the 1st ground of the amended motion, which are as follows :
“6th. Because the jury, while the case was pending, went to church at night.
“7th. Because said jury, while at church at night, heard the prosecutor in said case talk and shout; also heard a prayer in reference to the execution of the law and the maintenance of justice.
“1st. That said jury attended the Baptist church in a body, and while there was addressed by the prosecutor in said case, and was exposed to the crowd going to and from the church.”
' These grounds were certified to by the trial judge, “ with reference to the affidavits to sustain and rebut the same,” which appear in the record. These affidavits show, in substance, that pending the trial, and after the argument to the jury had begun, night came on and the court took arecess until the following morning, and instructed the bailiff who had charge of the jury, and the jury themselves, not to allow any one to speak to them, or to speak in their presence, about the cause, nor to discuss it among themselves until the argument of the case was concluded; that during that night, the bailiff took the- jury from the jury-room
The State introduced a number of affidavits to show that, while the jury attended the meeting at the church, they were given seats wholly apart from the congregation, and that no reference was at any time made to £‘ any law case whatever”; that they left the church in a body in charge of the bailiff, without mixing with the crowd, and without any person having any opportunity to have a conversation with them, either while they were at the church or when they were leaving it; and that the prayer to which reference is made in the 7th ground of the motion made no further reference to the court and jury in said case, than to ask ££ that the blessings of God might rest upon our government with its officers, and that God would bless the officers of the court then in session, that they might be guided aright in the discharge of their duties.” The bailiff who was in charge of the jury made an affidavit that, during the trial, no one spoke of the case in the presence of the jury, and that nothing was said about the prisoner in their presence; that he was careful to guard them, and and not thinking it was improper, had gone with them to the prayer-meeting; that on their way to and from the church they did not separate, nor was anything said to them or any of them, or in their presence, about the case; that at the church they were seated apart
1. The law in this State is, that where misconduct of •a juror or of the jury is shown, the presumption is that ’the defendant, has been injured, and the onus is upon 'the State to remove this presumption by proper proof. When the trial judge has decided, as in this case, that the State has removed that presumption and has shown that the defendant was not injured by the misconduct of the jury, reviewing courts are loth to interfere with his finding upon that subject. This court, however, has in several cases reviewed and reversed the decision of the trial judge upon this subject,—notably in the case of Obear v. Gray, 68 Ga. 182. So it is not the rule in this State, as it is in some others, that the decis
It is true that the jury say in their affidavits that these things did not influence their minds; but how can they tell—how can any man tell what particular facts and circumstances influence his judgment? Woolfolk, v. State, 81 Ga. 551; Smith v. Lovejoy, 62 Ga. 373; Thompson on Trials, 962.
After mature consideration of all these facts, we think the misconduct of this bailiff and- jury was so gross that the public policy of the State requires a new trial for the defendant. It was such a gross violation
2. During the progress of the trial, a photograph the place where the deceased was killed was offered and admitted in evidence. It appears from the evidence that the prosecution had procured a photograph of the locality and scene of the hohnicide. This photograph seems -to have been taken before the trial, and persons were placed in the positions said to have been occupied by the defendant and his accomplices. It was insisted by the plaintiff in error that the court erred in admitting this photograph in evidence before the jury. The motion for a new trial fails to state that it was objected to by the defendant, or if objected to, on what grounds the objection was made. The motion says it was calculated to inflame the jury. We have examined the photograph and do not see in what respect it was calculated to inflame the jury. We do not think there was any error in admitting it, on the gi’ound alleged the motion. The only ground that we can see why it should have been excluded was not argued- by counsel for the plaintiff in error. The evidence in the record does not positively show that the defendant’s position was that shown in the photograph. Wilson testifies, it is true, that the defendant was in front of the house, but does not locate him in the position the photograph does. Hooten testified that the photograph was a correct representation of the locality, but does not undertake to testify that Shaw was in the position shown by the photograph. As a-new trial is to be had, we would
3. There was no error in the other grounds of the motion for a new trial, especially the first, under the explanation made by the judge in his approval thereof.
Judgment reversed.