Merritt v. State , 152 Ga. 405 ( 1921 )

Atkinson, J.

1-5. Tbe rulings announced in lieadnotes one to five, both inclusive, and seven do not require elaboration.

6. The seventh ground of the amended motion for new trial was based on the alleged disqualification of Amos Meeks, as one of the jurors who participated in rendering the verdict, on account of his relation by marriage to David Harper, brother of the deceased and prosecutor in the case, within the prohibited degrees, such relation being unknown to defendant or his counsel until after verdict. As a part of this ground certain affidavits were set forth, in substance as follows: Daniel Gaskins Sr. testified, that he was seventy-three years of age, a resident and citizen of the county, and grandson of Mark Lott; that the great-grandfather of Drucilla Harper, wife of the prosecutor, and great-grandmother of Amos Meeks, the juror, were brother and sister, being children of Mark Lott, the common ancestor; that he was present in court a portion of the time that Bobert Merritt was being tried for the killing of Walter Harper, and saw tliat Amos Meeks served as one of the jurors that returned a verdict of guilty against the defendant; that he was not connected with the trial of the case in any way, either for the State or defense, and did not communicate the facts as to such relationship between the juror and prosecutor to either the defendant or any one connected with the case until after the trial. Vincent Carver testified confirmatory of those portions of the testimony of Daniel Gaskins Sr. which related to the pedigree of the wife of the prosecutor. Eobert Merritt, the defendant, testified: That at the time of the trial David Harper, the brother of the deceased, took an active part, in the handling and conduct of the prosecution, and his name appeared upon the indictment as the prosecutor; that at the trial the relatives of the prosecutor were ruled by the court disqualified as jurors, and in the selection of a jury each juror was questioned under oath with respect to their relationship to the deceased or the prosecutor, and whenever a juror answered that he was related to the prosecutor, either by blood or marriage, he was held incompetent to serve and excused for cause; that a jury of twelve men was selected and sworn to try defendant, and Amos Meeks was one of them, and the jury returned a verdict finding defendant guilty; that Amos Meeks, when questioned on his voir dire, testified under oath that he was not related to the prosecutor in the case, and deponent believed said juror and relied upon his evidence that he was not related to said prosecutor by blood or marriage, and deponent did not have any knowledge, notice, or information that said Amos Meeks, was related to the prosecutor by marriage or otherwise; that he had no means or opportunity or way of ascertaining the fact of such relationship, for the reason that the juror had testified that he was not so related by blood or marriage, and this defendant had no cause for suspecting that he was so related, and could not have ascertained the same by the exercise of ordinary care and diligence, and for the reason that he had no information whatever of the ancestry or kinship of said Amos Meeks; and that the first intimation deponent ever had as to such relationship was long after said trial had been completed and after he had been convicted and sentenced therein. The defendant’s counsel made a joint affidavit confirmatory of the defendant’s affidavit as stated above, and further, that they were the sole representatives of the defendant at the trial; that neither of deponents had any knowledge, notice, or information that the juror, Amos Meeks, was related to the prosecutor, David Harper, by blood or marriage, and had no way or time or means for ascertaining the facts or suspecting that such relationship in fact existed; that they could not have ascertained them by the exercise of ordinary care and diligence, for the reason that said juror was placed upon them for immediate action on their part, and they had no information whatever of his ancestry or kinship, and when he stated under oath that he was not related to David Harper deponents relied upon such statement, having no reason of any kind to suspect otherwise; and that they did not hear of said relationship until long after the trial had been concluded and the defendant convicted and sentenced under the charge for which he was tried.

At the hearing of the motion for new trial the State by way of counter-showing submitted certain affidavits as follows: Daniel Gaskins Sr. testified that he was the same person who made an affidavit in this case to be used as a part of the amended motion for new trial. In addition to his testimony already incorporated in the affidavit referred to, he testified further that no one of counsel representing the defendant nor Robert Merritt himself, at any time during the trial of the case, when he was in attendance at the court during any stages in the trial, inquired of him as to the relationship between the juror, Amos Meeks, and Dru'cilla Harper, wife of David Harper, the prosecutor. Walter Jowers and J. C. Rawlins, in separate affidavits but using exactly the same language, each testified as follows: “ I was present at Douglas- in the County of Coffee of said State of Georgia during the October term, 1920, of the superior court of said county, and was present in said court during all of the trial in the case of the State of Georgia versus Robert Merritt, who was charged with murder for the killing of Walter Harper, which trial resulted in a verdict of guilty, with a recommendation of life imprisonment. I was present when the jury which tried said case was selected, chosen, and sworn; and on account of the large relationship which existed in the county, between David Harper, the prosecutor in said case, and Robert Merritt, defendant, Mr. John Hall and Mr. Daniel Gaskins, who are among the oldest residents of Coffee County, Georgia, were called and requested by Mr. J. N. McDonald, one of the counsel representing the defendant, Eobert Merritt, to assist in ascertaining and pointing out the relationship of the jurors to either the prosecutor or the defendant, Eobert Merritt, and that upon this request of counsel for the defendant the said John Hall and Daniel Gaskins assisted in pointing out relationships between the jurors and the prosecutor and the defendant; and that Daniel Gaskins was present in said court during the selection of the jury which tried the defendant, Eobert Merritt, and that he remained in said court-room, so assisting in the pointing out of relationship until after the juror, Amos Meeks, which sat upon the jury which convicted the defendant, Eobert Merritt, had been selected and accepted by counsel representing the State and the defendant, Eobert Merritt, and his counsel, who represented him upon the trial of said case. I further testify, that Drucilla Harper, the wife of David Harper, the prosecutor, is a daughter of Cinda Paulk Merritt; that it is generally known over the county by the people who know David Harper that Drucilla Harper, his wife, is the daughter of Cinda Paulk Merritt; and that any person who did not know who the wife of David Harper was before her marriage to David Harper could have ascertained the fact upon reasonable inquiry, and by inquiring of .any of the people who lived in the community or neighborhood of the residence of David Harper; and that a large number of people attended the trial of said case, who resided in the vicinity and community of David Harper, and David Harper himself, who knew that Drucilla Harper, the wife of David Harper, was the daughter of Cinda Paulk Merritt; that Eobert Merritt himself knew that Drucilla Harper, the wife of David Harper, was the daughter of Cinda Paulk Merritt; that Tommie Merritt, the husband of Cinda Merritt, and Eobert Merritt Sr., the grandfather of Eobert Merritt, defendant, were first cousins, and that Drucilla Harper, the wife of David Harper, and Eobert Merritt were cousins themselves, which fact was all known by Eobert Merritt, defendant. I further swear, that defendant, Eobert Merritt, is a cousin of Tommie Merritt, the husband of Cinda Paulk Merritt, who is related to Amos Meeks, juror, by marriage; and that Eobert Merritt, the defendant, knew, or ought to have known, that Dru ■ cilia Harper, the daughter of Cinda Paulk Merritt, and the wife of David Harper, prosecutor, was also related to Amos Meeks: and that if he did not know of said relationship between Drucilla Harper and Amos Meeks, the same could have been ascertained by inquiry either by himself or his counsel who represented him in the trial of said case.”

This ground of the motion for new trial, being based on evidence as to disqualification of the juror, discovered after rendition of the verdict, must be determined under application of the rules laid down in the code and set forth in the sixth headnote. The rule provides that “ it must appear by affidavit of the movani and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” The evidence above stated shows that the movant made out a prima facie case. It showed that the juror Amos Meeks was related to the wife of David Harper, the prosecutor, in the 8th degree, according to the rules of the civil law, by marriage, .which would disqualify the juror; the rule being that the relationship of a juror within the 9th degree to the prosecutor will disqualify. The evidence also showed that neither the defendant nor his'counsel knew of the existence of such relationship between the juror and the prosecutor until after the verdict. It is mainly contended by the State that a new trial should not be granted, because the defendant could have discovered the relationship which formed the basis of the disqualification of the juror, prior to the verdict, by the exercise of ordinary care. But under the circumstances as to the remoteness of the relationship between the several parties, as disclosed by the evidence above set forth, and the circumstance that the defendant’s counsel called upon the witness Daniel Gaskins. Sr. (who the State says, was supposed to have known the relationship of the several parties) for the information touching relationship of all jurors either to the prosecutor or to the defendant, and was not informed by him that this juror was related, and the circumstance that while on the voir dire, in answer to the direct question by defendant’s counsel, the juror himself stated that he was not related to the defendant or the prosecutor, it cannot be said that the failure to discover the disqualification óf the juror was due to the want of ordinary care upon the part of the defendant or his counsel. The evidence discloses a bona fide effort to discover all possible disqualifications of jurors, and the conduct of counsel in making such attempt measures up to the rules of ordinary care as provided by the statute. It might have been that if special inquiry had been made of Daniel Gaskins Sr., as to the relationship of this particular juror, the fact of the relationship would 'have been discovered; but having requested such information from him as to all of the jurors, which would include the juror Amos Meeks, it would be going beyond the requirements of ordinary care to hold the counsel to the necessity of making such special inquiry. See, in this connection, Thomas v. State, 52 Ga. 509; Phillips v. State, 33 Ga. 281 (3).

Judgment reversed.

All the Justices concur. Atkinson and Hill, JJ., dissent from the ruling in the fourth lieadnote.