Hughes v. State , 159 Ga. 818 ( 1925 )

Per Curiam.

Ida Hughes was tried and convicted of the offense of murder. After the trial had proceeded for two days, January 23 and 24, the jury retired to consider their verdict. Not having reached a conclusion for some time, the jury was sent to supper, and returned to the jury-room. Thereafter, the jury still having returned no verdict, there was a discussion between the court and counsel for the accused and for the State as to allowing the verdict to be delivered to deputy sheriff White, and allowing the jury to disperse whenever they should have agreed; but counsel differing, no agreement was reached. The presiding judge was very unwell, and at about 8:30 o’clock left the court-house and went to his home, as did all the counsel in the case, leaving the jury in their room in charge of deputy sheriff White. Sometime between 9 and 9:30 o’clock the jury notified deputy sheriff White that they had reached a verdict, and this officer by telephone notified the judge and E. A. Stephens, representing the State, as well as Messrs. Wells and Allen, the attorneys for the accused, that the jury had agreed. His honor Judge Howard W'as at home sick; and Messrs. Wells and Allen, each of whom lived about eight miles from the court-house in different directions, were at their respective homes. Mr. Stephens, the assistant to the solicitor-general, had been selected to receive the verdict in behalf of the State, and soon appeared at the courtroom. Mr. Stephens got in telephonic communication with the judge and with Messrs. Wells and Allen, and suggested to Mr. Wells that the jury hand their verdict to deputy sheriff White and he allowed to disperse until morning, when the verdict would be formally received, and was told by Mr. Wells to communicate with Mr. Allen and that he (Wells) would do whatever Mr. Allen preferred. Mr. Stephens then telephoned to Mr. Allen, who agreed to the suggestion, and upon communication with the presiding judge the latter gave his consent by telephone. The defendant, who -was under guard of an officer in company with her eodefendant, her husband, in a room adjoining the judge’s chambers and the court-room, also gave her consent to the action proposed, upon the promise that she be told the result of the finding. In accordance with these stipulations Mr. Stephens, of counsel for the State, and deputy sheriff White went to the door of the jury-room, where the verdict was handed to the deputy sheriff, who in turn handed it to the State’s counsel in order that “he might see if it was in proper form.” The verdict was then read by State’s counsel and Mr. Hughes; and the jury was discharged by the deputy sheriff, after being admonished to be in the court-room at 9 o’clock the following morning. The jury was brought into the court-room; the verdict was not received in court that night, only having been handed to the deputy sheriff to be kept until the next morning. The next morning, January 25, when the court met, the jurors were called into their box, and the question was asked whether the defendant desired to poll the jury, and her counsel replied in the negative. The verdict finding tbe defendant guilty of murder was then read, and the defendant was sentenced by the presiding judge to be hanged, on a day set forth in the judgment. The defendant, now plaintiff in error, on February 1, 1924, through different counsel from those who defended her, filed a petition to set aside the verdict and sentence of the court, upon various grounds. The only ground of the petition material to a decision in this case is that which attacks the verdict on the ground alleging that it was returned during a recess of the court and in the absence of the judge, and that the jury were permitted to disperse before the purported verdict was returned into court; it being urged that the verdict was a nullity. A hearing on the petition was had on February 9, 1924, when the respondent answered the petition. The petitioner demurred to the answer of the respondent, and moved to strike the same as insufficient. The trial judge overruled the demurrer, and thereafter denied the petition to set aside the judgment of the court. To the overruling of the demurrer and to the denial of her petition the plaintiff in error excepted.

The controlling rulings on this writ of error are stated in the headnotes.

Judgment affirmed.

All the Justices concur, except