25 Ga. App. 577 | Ga. Ct. App. | 1920
The 3d headnote alone needs elaboration. The 7th special ground of the motion for a new trial is as follows: “ Because the verdict of the jury in the ease of The State vs. M. T. Summerlin, who was jointly indicted with movant, was allowed
In Killen v. Sistrunk, 7 Ga. 283, it is held that “where a paper, which is capable of influencing the jury on the side of the prevailing party, goes to the jury by accident and is read by them, the verdict will be set aside, although the jury may think that they were not influenced by such paper; aliter where the paper is not read.” This ruling has been uniformly followed by the Supreme Court and by this court. In the instant case it is evident, from all the facts stated in the motion for a new trial, that the jury read the Summerlin verdict before they wrote their verdict in this case, and it is probable that the reading of the former verdict influenced them in their finding in this case. The fact, as stated by the judge in his note, that counsel for the defendant made no motion to the court to have the paper on which the Summerlin verdict was written kept from the jury, does not, under all the other facts shown, render this ground unmeritorious. If the Summerlin verdict had been written on the presentment itself, we would hold that counsel for the defendant should have made such 'a motion to the court. It is shown, however, that the Summerlin verdict was written on a separate sheet of paper, which was pinned to the presentment in the instant case; that counsel for the defendant, before the papers were submitted to the jury, detached from the presentment the paper containing the Summerlin verdict and handed it to the clerk of the court; that when the solicitor-general asked counsel for the defendant in.open court if they wanted the verdict in the Summerlin case to go out with the presentment, to the jury, counsel for the defendant objected to said verdict being sent out with the jury. An inference is clearly demanded, from this ground of the motion,
Judgment reversed.