Sharpe v. State , 164 Ga. 151 ( 1927 )

Gilbert, J.

The first and second headnotes do not require elaboration.

One ground of the motion for new trial is as follows: “Because each of the two nights after the jury would leave the courthouse to retire for the night, during the trial of the case and’ before they returned a verdict to the court, the foreman of the jury, Mr. J. 0. Ward, without knowledge of the defendant or defendant’s counsel and without the consent of the judge of said court, was allowed by the bailiff in charge to separate from the rest of the jury and sleep in a separate room with his wife, and he would remain there until the next morning, being separated during-each night from the jury and in company with a person other than the bailiff or other members of the jury, said action upon the part of the foreman of the jury being .highly improper and therefore harmful and prejudicial to the rights of the defendant.” The facts alleged in this ground as to the separation of the juror are supported by an affidavit of that juror’s wife. A counter-affidavit by said juror tended to show that neither the case nor the name of the accused was mentioned in his presence during the time of the alleged separation, and that the subject was not mentioned by any one in his presence during that time. This affidavit further tended to show that the doors between the rooms occupied by the jurors were open, and that the doors of the house to the outside were locked, and that the juror, Ward, wás under the watch of the bailiff in charge of the jury. Affidavits were also introduced showing the good character of that juror. There was no evidence submitted by movant tending to show lack of knowledge of the facts set out in this ground of the motion on the part of the accused or his counsel, and no evidence to show that they did not have full knowledge of said facts before the verdict was returned.

In Josey v. State, 148 Ga. 468 (96 S. E. 1041), this court ruled: “In order for the misconduct of a juror during the trial of a criminal case in which he is engaged to be cause for a new trial, it must affirmatively appear that the accused and his counsel did not know of the misconduct until after the verdict. Walker v. Walker, 11 Ga. 203; Cannon v. Bullock, 26 Ga. 431; Salter v. Glenn, 42 Ga. 64; Eberhart v. State, 47 Ga. 598; Cogswell v. State, 49 Ga. 103; Carter v. State, 56 Ga. 463; Smith v. Lovejoy, 62 Ga. 372; Lyman v. State, 69 Ga. 404; Kirk v. State, 73 Ga. 620, 627; Wynn v. City & Suburban Ry., 91 Ga. 344 (17 S. E. 649); Central of Ga. Ry. Co. v. Hammond, 109 Ga. 383 (34 S. E. 594); Brooks v. Camak, 130 Ga. 213, 217 (60 S. E. 456).” In Cogswell v. State, 49 Ga. 103, it was held that proof of the fact should be made by affidavits, and that a new trial will not be granted unless it affirmatively appears that the accused and his counsel did not know of the misconduct of the juror before the jury retired for a verdict. In the opinion in that case it was said: “Parties can not know of an impropriety in the jury, submit to it, taking the chances of a verdict, and then set up facts which came to their knowledge before the verdict.” It is true that the motion for new trial in this case states that the juror, “without the knowledge of the defendant or defendant’s counsel and without the consent of the judge of said court, was allowed by the bailiff in charge to separate' from the rest of the jury and sleep in a separate room with his wife,” etc.' This allegation, properly construed, means that at the time of the separation or before the separation the accused and his counsel did not know of the same or consent thereto. It is not an affirmative allegation that they did not know of it at any time before the jury retired to make a verdict, nor that they did not know of it before the verdict was returned into court. Moreover, while prejudice is presumed from the misconduct of jurors and while the burden is upon the State to show that no harm resulted, under the affidavit of the juror, Ward, the court was authorized to find that the misconduct of the juror, if such it was, did not require the grant of a new trial. Jones v. State, 136 Ga. 157 (71 S. E. 6); Marshman v. State, 138 Ga. 864 (76 S. E. 572).

Judgment affi¡-med.

All the Justices concur, except