129 Ga. 425 | Ga. | 1907
We will deal at once with the 4th ground of the motion for new trial. It is expressly stated in the motion for new trial that the jurors read the paper which contained the editorial complained of. The judge certified the recital of facts to be true. It is thus made affirmatively to appear that the jurors read the paper. It is nowhere stated in so many words that they read the editorial, but there is no explanation by the jurors nor any counter-showing. It was in the paper and, as we shall see, was of harmful character, and in the absence of a denial it will be presumed that the jurors read it. See, in this connnection, Thompson & Merriam on Juries, §395, and cit. The judge no doubt intended to certify that the jurors read the editorial. Had that not been the intention, he could simply have certified that the jurors did not read the editorial, and would thereby have avoided the question which counsel have argued and which we are called upon to decide. In the absence of denial, we will presume, from the recitals in the motion and the judge’s certificate, that the editorial was in fact read by the jurors. This leads to the inquiry as to whether the fact of reading the article was misconduct upon the part of the jurors, and, if so, whether it was of such character as to require a reversal of the judgment refusing a new trial.
An examination of the editorial will show clearly that it is argumentative in favor of convictions in capital eases such as the one on trial. Either a casual or a most scrutinous reading of the article will lead to that conclusion, and to none other. It was not only argumentative, but almost of coercive character, in that it criticised juries for failure to convict. The charge inferen
It is insisted that the defendant could not have been injured, because the article did not make reference to the particular case on trial. The fact that the case is not specially named does not necessarily deprive the argument for convictions, as contained in
We know of only three cases which have been before this court where it was argued that a new trial should have been granted upon the ground that the jurors, after having been impaneled, had been permitted to read newspapers. Fogarty v. State, 80 Ga. 450; Flanegan v. State, 64 Ga. 52; Hunter v. State, 43 Ga. 483 (6). In the two cases first mentioned this court declined to interfere with the discretion of the trial court in refusing to grant a new trial, because it was not shown that any harm had resulted to the
There are other cases, in which new trials have been ordered upon the ground of misconduct upon the part of the jurors. These cases do not involve the question of the propriety of the jurors .reading newspapers, but the rulings made in them go to the preservation of the purity of jury trials, and the principles announced in them are applicable to the facts in this case. We will deal with some of them. The case of Shaw v. State, 83 Ga. 92, is where the misconduct complained of consisted in the jury attending a prayer-meeting conducted by the prosecutor in the case. Upon arrival the jurors were shown their seats by the prosecutor, separate and apart from the remainder of the congregation. The prosecutor led the services and addressed the congregation. Prayers were offered for the court and its officers, but no reference was made to the particular case on trial. There was shouting at the meeting. In passing upon this case, the following was announced in the headnote: “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 such presumption by proper proof. While reviewing courts are loth to interfere with the decision of the trial judge that the presumption has been removed, such decision is in this State subject to review. The misconduct of the jury and of the ■officer in charge of them in this case was of such character as to Tequire a new trial.” In the course of the opinion it ‘was said by Mr. Justice Simmons: “There are many things which can be done by individual members of the jury, or by the whole jury,
Under the view we take of the case the editorial complained of dealt with a subject so related to the case on trial as to make its references applicable to that case; and, because of its argumentative character and its tendency, through appeals to the emotions and passions of jurors, to displace the element of impartiality in the minds of the jurors, it was harmful to the accused, in that it tended to deprive him of a fair and impartial trial. He brought himself under the rule by making complaint in the manner and at the time authorized by law, and the judge should have granted a new trial. As the case must go back for another trial, we will not deal with the assignments of error which relate to the general grounds of the motion.
Judgment reversed.