56 Ga. App. 618 | Ga. Ct. App. | 1937
It appears that the jury selected and sworn in the present case in the trial court were, at the beginning of their deliberations, placed in charge of two bailiffs, J. A. Yinson and J. B. Arnett. Arnett had been a witness for the State. The defendant was found guilty, and on the motion for new trial it was contended that certain conduct of Arnett and certain illegal communications with the jury were such as to vitiate the verdict and require a new trial. After careful consideration, we are of the opinion that the judge committed error in denying this motion. At the hearing of the motion the defendant submitted the affidavit of the bailiff Yinson, in which he deposed that the bailiff Arnétt slept in the room with some of the jurors and in the bed with one of them; that during the night he heard the' jurors and Arnett laugh and talk about the manner of testifying of one of defendant’s witnesses, one Justice; that at various times while the jury was walking around the streets he heard Arnett “talk and discuss the case with” them; and that the jury were allowed to dis
It is quite true that the finding of the trial judge on conflicting affidavits as to the misconduct of the bailiff who had the jury in charge during their deliberations, or as to the misconduct of a third party in the presence of the jury, will, in the absence of an abuse of discretion, be upheld by this court. Buchanan v. State, 118 Ga. 751 (45 S. E. 607); King v. State, 119 Ga. 426 (46 S. E. 633); Sullivan v. State, 121 Ga. 183, 187 (48 S. E. 949). However, in the present ease there is no conflicting evidence to the fact that the bailiff Arnett slept in the bed with one of the jurors, or that the jury were allowed to separate in some woods to answer a call of nature, or that Mrs. Houston was guilty of the conduct ascribed to her by the bailiff Yinson. In so far as the record be
Judgment reversed.