16 Ga. App. 234 | Ga. Ct. App. | 1915
The defendant was on trial for a misdemeanor, and the jury were out considering the case when the court took a recess for dinner. The jury were left by the court in the charge of a bailiff, without any instruction or intimation which permitted them to disperse, and there was no agreement on the part of the defendant or his counsel that the jury might disperse after agreeing to a verdict, or that a sealed verdict might be returned. During the recess the bailiff permitted the jury to disperse and to go out and mingle with the people generally. When court reconvened, after the dinner recess, the jury reassembled in the jury-room, and, after a few moments, came into court and returned what purported to be their verdict.. The defendant and his counsel objected to receiving the jury’s finding, and moved the court to declare a mistrial. Over the objection of the defendant and his counsel, the court received the verdict in open court, and imposed sentence. The defendant promptly during the term moved to set aside the verdict and judgment for the reasons above stated. The court overruled the niotion to set aside the verdict, and exception is taken to that judgment.
We think the court erred in refusing to order a mistrial upon the defendant’s motion, and thereafter erred in not sustaining the motion to set aside the verdict.' The case is controlled by rulings of the Supreme Court in Nolan v. State, 55 Ga. 521 (21 Am. R. 281), Silvey v. State, 71 Ga. 553, Barfield v. Mullino, 107 Ga. 730 (33 S. E. 647), Prescott v. Augusta, 118 Ga. 549 (45 S. E. 431), Bagwell v. State, 129 Ga. 153 (58 S. E. 650), and decisions of this
We are clear that when the attention of the court was called to the matter by the defendant’s demand for a mistrial, it was error not to withdraw the case from the further consideration of the jury, and to refuse to order a mistrial. “The highest public policy and the maintenance of the purity of our jury system demand that the verdict of the jury shall not only be untainted by illegal, improper, and prejudicial influences, but even that it shall be above suspicion.” Griffin v. State, supra. This is the rule in both civil and criminal eases; and if the rule is to be relaxed, its observance is certainly less important where only property rights are concerned than where the liberty of the citizen is involved. It frequently happens that in the trial of misdemeanor cases, the jury is permitted to disperse while the trial is in progress, during temporary recesses of the court, and frequently, in such cases, the court allows the jury to separate after a verdict has been agreed to, signed, and sealed in an envelope, which is sometimes delivered to the clerk and sometimes retained by the foreman; but in these cases the permission to disperse depends upon the consent of the parties, and especially the consent of the defendant, to the separation. “When a jury has retired to consider a case submitted to
In the Hopkins case, supra, as in this case, the jury dispersed at the noon recess; in this case they dispersed without the court’s knowledge, and in the Hopkins ease despite the court’s order. It is true that in the Hopkins case the defendant had expressly refused to consent for the jury to disperse, whereas in the present case it does not appear that the defendant’s consent was asked or refused. In the Hopkins ease we held that the defendant was entitled to a discharge, and that the verdict was a nullity, because, by the separation of the jury, the defendant was deprived of his right to poll the jury, and the dispersal of the jury should be held at least equivalent to a mistrial without the consent of the defendant and not caused by such necessity as is recognized by law. In the present case a motion for a mistrial was made and should have been granted; and, since the verdict returned is for that reason a nullity, the court should have granted the motion to set it aside. In the Hopkins ease we held: “One who is accused of crime has the right to insist upon all the formalities attached by law to a legal trial.
The solicitor-general, in support of the contention that the dispersal of the jury was harmless, cites the cases of Storey v. Weaver, 66 Ga. 296 (1), and Roberts v. State, 14 Ga. 8 (4), 14 (58 Am. D. 528). The ruling in Storey’s case is not in point. There the motion to set aside the verdict (which was rendered by default in a civil case) was based, upon the ground that, due to a misunderstanding, the defendant’s counsel failed to file a plea in his behalf, and that he had a meritorious defense; the evidence as to the cause of the failure to timely file a plea was vague and conflicting, but it is perfectly plain that the defense that the defendant would have filed was wholly worthless. Upon this state of facts the Supreme Court affirmed the judgment overruling the motion to set aside the verdict; and it was upon this state of facts that the court held that “a, motion to set aside and vacate a judgment and reinstate the case can not be determined by any fixed rule, but depends upon the circumstances in the case.” There is nothing in the record in that ease like the separation of the jury before the rendition of the verdict, to afford a reason for impeaching the fairness of the trial.
The ruling in Roberts v. State, supra, is relied upon by State’s counsel as authority in support of the proposition that where the trial judge has satisfied himself, by a careful examination of jurors on oath, that casual intercourse on the part of the jurors with outsiders was not injurious to the prisoner, and so announces, the court may not on this account disturb a verdict. But no motion for a mistrial was made in that case. The ruling was placed upon the principle announced in Monroe v. State, 5 Ga. 85, that a separation of the jury raises a presumption of hurt and injury to the prisoner, a presumption that he can not be fairly and properly tried by them, and places upon the prosecution the burden of showing, beyond a reasonable doubt, that the defendant has sustained no injury on account of the separation; but where a motion for a mistrial is made before any verdict has been received, and it appears that the jury dispersed without rendering a verdict and that the
When no motion for mistrial is made, after the defendant is aware of a separation of the jury, he will be presumed to be satisfied with the showing to the effect that no injury has resulted to him, and to have waived the irregularity in the trial, whereas by a motion for a mistrial he waives nothing, but impliedly asserts his conviction that he has been injured or is likely to* suffer injury. By a motion for mistrial the defendant raises the point that any verdict found will be a nullity, by reason of the fact that he has been injured through the separation of the jury, and he raises it at a time when, if he be guilty, the State may legally establish that fact upon another trial. Under these circumstances the State’s interests are not hazarded by a plea of former jeopardy. When the point is raised for the first time after a trial, certainly if the defendant knew before the verdict of the separation, he should be estopped to assert that he was injured, and should be deprived of the right of pleading a jeopardy which he had voluntarily encountered and assumed. Misconduct on the part of the jury while
Judgment reversed.