Summary
In King, the state sought to rebut the presumption of harm by affidavits of 11 jurors, the affidavits of the 12th juror being in violation of Code § 110-109.
Summary of this case from Battle v. StateOpinion
35831.
DECIDED SEPTEMBER 22, 1955.
Voluntary manslaughter. Before Judge Hicks, presiding. Haralson Superior Court. May 20, 1955.
Murphy Murphy, Claude V. Driver, for plaintiff in error.
Robert J. Noland, Solicitor-General, contra.
The statement to the jury by the bailiff, purported by him to have been authorized by the judge after the jury had deliberated for 24 hours, that "he was going to keep them a week or they would make a verdict," after which three jurors changed their votes from acquittal to conviction and a verdict of guilty was rendered within thirty minutes from the time the statement was made, must conclusively be presumed to have influenced the verdict and is such improper conduct as to demand a new trial in this case. That this statement thus made by the bailiff was in fact unauthorized by the judge is immaterial, this not appearing until after the verdict.
DECIDED SEPTEMBER 22, 1955.
This appeal represents an exception to the judgment of the trial court denying an extraordinary motion for a new trial as to the defendant L. G. King, who was indicted and tried in the Superior Court of Haralson County for the offense of murder and convicted of voluntary manslaughter. Affidavits were presented by both the defendant and the State at the hearing of this motion, and testimony was introduced. From this it appears that the jurors had considered the case about 24 hours; that one of them requested the bailiff to tell the judge it would be impossible for them to make a verdict and they would like to go home; that thereafter the bailiff told the jury the judge said that they would make a verdict or he would keep them there a week, which was not true, as what the judge actually told the bailiff in substance was to leave the jury alone and tell them nothing; that before this statement the jury stood 9 to 3 for conviction; that within 30 minutes thereafter they brought in a verdict of guilty.
Eleven of the jurors either swore or deposed that they had taken the bailiff's statement as a pleasantry, and that it had no effect on their verdict. As to the 12th juror, his original affidavit contained the following language: "Deponent says that on each and every vote of the jury he had voted for acquittal of the defendant, L. G. King, with the exception of said final vote immediately after said communication from said bailiff; that deponent was 59 years of age and was in bad health, that said jury had been out two nights; that he was sick, and having been away from home 2 nights, that when said communication of said bailiff which was purported to have been made by and from the court was made known to him, he and 2 of the other jurors on said jury immediately changed their vote from acquittal to guilty of voluntary manslaughter . . . that if said communication from said bailiff purporting to have been made by the direction of the judge had not been made known to him, and if he had not believed said purported communication from the judge, he would not have agreed for said verdict of guilty of voluntary manslaughter." This affidavit was attached to the extraordinary motion for a new trial. Upon the hearing, and attached to the State's counter-showing, was another affidavit by the same juror, which contained the following: "Deponent further says on oath that the statement of the bailiff in charge of said jury to the effect that the judge would keep the jury a week until they made a verdict had no influence on me as to the verdict made, but merely caused me to reach the said verdict at an earlier time."
The extraordinary motion for a new trial was denied by the hearing judge (not the same judge who heard the trial of the case), and this judgment is assigned as error.
Any remarks to the jury by the trial judge or other officer of the court not relevant to any issue in the cause which would have a tendency to coerce them into reaching their verdict constitutes reversible error. Campbell v. State, 81 Ga. App. 834 ( 60 S.E.2d 169). That the statement here complained of was made by the bailiff to the jury and falsely attributed to the judge, and that its falsity was not known until after the verdict, is admitted. In Shaw v. State, 83 Ga. 92, 101 ( 9 S.E. 768), the jury, while deliberating their verdict, were taken to a prayer meeting where the solicitor-general presided, seated them, and in his sermon made reference to the court and the trial. Headnote 1 of this case states: "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 loath 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 a character as to require a new trial." At page 99 it is held as follows: "There are other things, however, which if done by an individual member of the jury, or by the whole jury, are so contrary to the public policy of the State in the procurement of fair and impartial trials for the citizens of the State as to require that a verdict rendered by such jury be set aside, whether the defendant has been injured thereby or not; and in our opinion, the case under consideration belongs to this class. The State is jealous of the rights and liberties of its people. When one of its citizens is accused of crime, it throws around him all the safeguards that are possible, in order to procure him a fair and impartial trial. It requires the officer who has charge of that particular jury, to swear, in substance, in open court to take them to the jury-room and there keep them safely, and not to communicate with them himself or suffer anyone else to communicate with them, unless by leave of the court. The law contemplates that when a jury are selected and sworn to try a citizen for felony, they shall be entirely separated from the world, and that no communication whatever shall be had with them, from the beginning of the trial until the verdict is rendered, unless by leave of the court. It contemplates that no outside influence shall be brought to bear on the minds of the jury, and that nothing shall occur outside of the trial which shall disturb their minds in any way; that the minds of the jury shall be entirely occupied with the consideration of the case which they are sworn to try."
In the Shaw case the jurors made affidavits, as in this case, that they were not influenced. In that case, at page 101, the Supreme Court stated: "It is true that the jury say in their affidavits that these things did not influence their minds; but how can they tell — how can any man tell what particular facts and circumstances influence his judgment? Woolfolk v. State, 81 Ga. 551; Smith v. Lovejoy, 62 Ga. 373; Thompson on Trials, 962." Harris v. State, 150 Ga. 680 ( 104 S.E. 902), like this case, came on an extraordinary motion for new trial, and like this, was a felony case. As in this case, the bailiff stated to the jury that "the judge would keep them locked up until they did make a verdict." In that case the court, at page 683, stated: "We cannot be assured that the agreement [verdict of guilty] subsequently made, but unattainable before, was not effected by this communication. The communication itself was clearly illegal; it was calculated to influence the jury, or some of them, and therefore the verdict is not free from taint." (quoted from Gholston v. Gholston, 31 Ga. 625, 639).
Code § 110-109, codified from Fulton County v. Phillips, 91 Ga. 65 (2) ( 16 S.E. 260), provides that "The affidavits of jurors may be taken to sustain but not to impeach their verdict"; and this rule of law is recognized, regardless of the fairness or unfairness thereof. Its effect of course is that jurors who contend they were not influenced by the improper remarks may swear to that effect. If the truth is to the contrary, their lips are sealed. Its further effect is that jurors who are asked the question are called upon either to refuse to answer, which means they were influenced in violation of their oaths, or to swear that they were not influenced. The temptation must be strong for a juror to uphold the integrity of his oath, given on entering the jury box, to "a true verdict give according to the evidence," rather than admit, also under oath and after the trial, that in violation thereof he allowed matters other than the evidence in the case to influence his decision. Of course, if he was influenced by how long he might be in the jury box, he was influenced by a matter other than the evidence in the case. Be that as it may, the authorities herein cited require the reversal of this case, notwithstanding affidavits of the jurors that they were not influenced.
On the other hand, the record here shows that after deliberating 24 hours, 3 of the jurors had consistently voted for acquittal; that, within 30 minutes after the statement herein complained of was made by the bailiff to the jury, these 3 jurors capitulated and voted for a verdict of guilty. Eleven of the jurors, being authorized to do so under Code § 110-109, testified the statement had no influence on them. This included 2 of the jurors who had previously voted for acquittal. The remaining juror first made an affidavit that he was influenced, which affidavit cannot be considered because it is in violation of Code § 110-109. He later made an affidavit for the State, in which he undertook to limit the amount of influence the statement had upon him. This affidavit fails, however, to show total lack of influence. Under any rule the onus is upon the State to remove the presumption of harm. That burden could only be carried by affidavits of 12 jurors. If there was no affidavit at all, therefore, on the part of the 12th juror, the State would have failed to carry the burden. As herein pointed out, the 12th juror made 2 affidavits, neither of which can be considered because they both show influence and consequently tend to impeach the verdict. The second affidavit by this juror for the use of the State shows that he made the verdict sooner than he would have but for the statement. This shows some influence for bad and thus tends to impeach the verdict and cannot be considered. Since the 12th juror failed to make an affidavit that would uphold the verdict, the State failed to carry the burden of showing that this error in trial procedure had no harmful effect.
However, the well established rule in this State enunciated in Shaw v. State, supra, and Harris v. State, supra, applies to this case and requires its reversal regardless of whether or not it is made to appear that the error was prejudicial and harmful, it being conclusively presumed that it was so.
The trial court erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.