2 Ga. App. 148 | Ga. Ct. App. | 1907
Ed Sherman was tried and found guilty of the offense of carrying concealed weapons. He moved for a new trial, and his motion was overruled. It is onty necessary to notice the amended grounds of the motion. These were two in number. In the first it is insisted that the court erred in refusing to exclude the testimony of the State’s witness, upon the ground that a legal arrest wa§ not shown, because it did not appear that the party arresting had a warrant against the defendant, and because it must appear that the arrest was legal, before the testimony would be admissible. The second ground was that, “only eleven of the jury selected to try the case served, and that in place, of W. A. Stephens, one of the jury selected to try the case, was put or voluntarily went in one W. H. Justice, a member of the ¡Danel of the jirrors that had been stricken.” With regard to the second ground of the motion, the presiding judge qualifies his approval by the following note: “Two jury lists were handed out and a jury stricken. The jury was called, and twelve jurors took their places in the jury box, after being duly sworn. The solicitor and
The court was right in refusing to declare a mistrial'. The motion to declare a mistrial came too late. But we think that the defendant is entitled to a new trial, and that our learned brother of the trial bench erred in overruling the motion. The only evidence introduced for the State was that of the witness Gatewood, who testified as follows; “On October 5, 1906, I
We think, too, that a new trial should have been granted upon the ground that Justice served upon the jury, instead of Stephens, after having been rejected by the defendant. The case at bar' is nearly identical with the case of Stripling v. State, 77 Ga. 108, 3 S. E. 277. It is true that in the Stripling' ease neither the defendant nor his counsel knew the juror who served, while in the present case the defendant’s counsel did know the juror Justice; but the testimony that the counsel is near-sighted and did not see Justice on the jury, or know that he was there, until the jury came to render their verdict, is not disputed, and otherwise there is no difference in the two cases. It does not appear how Justice came to be substituted for Stephens; and, as remarked in the Stripling case, “it is somewhat remarkable that the substitution was not discovered and corrected at an earlier period.” But in the Stripling case, as in this, the mistake was not discovered until after the trial was over. In that case Jobson was substituted for Jones, and Jones was'an acceptable juror (as Stephens was in this case), while Jobson would have been a very unacceptable one (as Justice appears to have been in this case). “The allegation, in short, is that the defendant was tried by only 11 jurors of his own selection, and he asked, therefore, that a new trial be granted him upon this and other grounds, which, as before stated, the court refused. This refusal we are satisfied was error.” There might have been exceptions made to Justice propter affectum, if the defendant had desired to urge them; but,
In our examination of this question we have found two cases in which a new trial was held to have been properly refused where une juror was substituted for another; but neither of those cases is similar to this case. In the case of Anderson v. Green, 46 Ga. 362, a juror was selected bjr both parties, and another answered to his name and served in his stead, and the Supreme Court held that that was not a good ground for new trial, as it did not appear that both the substitute and the principal were unknown to the defendant and his counsel. The difference between the Anderson case and the case at bar is that the person who served had not been rejected. In the present case Justice had been peremptorily challenged and stricken from the list by the defendant. Nor was an3r reason shown or offered to be shown in the Anderson case why tho person who served was for any cause objectionable to the defendant. And the case of Burns v. State, 80 Ga. 545, 7 S. E. 88, is unlike this case, as that case was held by the Supreme Court to be unlike the Stripling case, because in the Burns case the juror Charles Foster, who served, was accepted b3r the defendant, and the court held that, while the accused and his counsel did not know all the facts, 3ret in the exercise of due diligence they ought to have known, before accepting the juror, whether the juror they accepted (Charles Foster, a negro, instead of Charles Foster, a white man) was 21 years of age or a minor and whether he was upon the jury list of the county. In other words, the extent of the holding in that case was that an exception propter ■defectum to a juror accepted by a party on the trial could not bo «considered on a. motion for, new trial; but, from what appears.