Morakes v. State , 201 Ga. 425 ( 1946 )

The rulings in divisions 3 and 4 (as to special grounds 7 and 8) were stated by me for the majority of the court. I dissent from the rulings there made and from the judgment of affirmance.

In all criminal trials great care should be exercised to preserve to the accused his constitutional right of an impartial jury and a fair trial. The provision of our Constitution, that "No person shall be deprived of life, liberty, or property, except by due process of law," is more than the mere grouping of inanimate words. It is a living, positive, and continuous guaranty upon which the rights of the citizen and our way of life must rest. "Due process" is law in its regular course of administration through courts of justice, or the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.

As shown by the oath required of bailiffs attending a trial jury (Code, § 59-717), due process requires that, when a juror enters upon the trial of a criminal case, such juror shall be absolutely withdrawn from society. No provision is made for communication by such juror with outside sources or influences. From the time of his selection until he is discharged from any further consideration of the case, by reason of verdict, mistrial, or otherwise, such juror is not to be subjected to contacts which might affect his impartiality as a juror.

Denial of due process is not that slight or trivial variation from established rules, which can not possibly injure the accused. Due process is denied where there has been a positive violation of a sworn duty by an officer of the court in charge of the jury, resulting in a legal presumption that the accused was injured, and where such presumption is not overcome by proper proof. This court is in full accord on the rule that, "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." Shaw v.State, 83 Ga. 92 (9 S.E. 768). In this case I disagree with the majority of the court as to the State having overcome the presumption of injury by proper proof.

It is not material to a proper judgment here whether counsel for the accused may, or may not, have known that the jury would spend the night at Newsome's Tourist Camp. Concede that counsel did in fact have such knowledge. There is no evidence, by any person, nor can any inference be adduced from any evidence, that counsel knew, or could have known, that the bailiff in charge of the jury would permit them, when they were ready to retire, to be, in effect, taken in custody by Rufus Newsome, who was not an officer of the court, but was the operator of the tourist camp, and that Newsome, out of the presence of the bailiff, would escort the jury into separate cabins and show them how to "operate the heat and the lights." Nor is there any evidence or inference that counsel knew that the bailiff would retire in a cabin separate and apart from the jury.

Since the deceased was a man of prominence, being the Chief of Police of the City of Madison, and the defendant's trial for the shooting of the deceased had begun, it is entirely probable that persons in the community would be discussing the case. The record does not indicate whether or not persons other than the jurors occupied cabins in the tourist camp near the cabins occupied by the jurors, or whether the jurors during the night had any opportunity to communicate with members of the general public or overhear remarks made by the public about the case on trial.

It is the opinion of the writer that it was a serious irregularity for the bailiff to allow Newsome, who was not an officer of the court, to enter the cabins with the jurors, outside of the presence of the bailiff. Further, the bailiff should have remained on duty and in close observation of the cabins occupied by the jury. A comfortable bed and a night's sleep are not nearly so essential or vital to the individual and to society as the discharge of that vigilance and duty required of an officer in charge of a jury. Especially may this be said to be true when life or death rests upon the verdict to be rendered.

In Monroe v. State, 5 Ga. 85, 146, it was said: "That the person accused may have the full benefit of a judgment by his peers, it is absolutely necessary that the minds of the jurors should not have prejudged his case; that no impression should be made to operate on them, except what is derived from the testimony given in court, and that they should continue impartial and unbiased. These objects can only be attained by selecting those who have no preconceived opinions as to the guilt or innocence of the prisoner, and by not permitting them to separate from each other after they have been sworn, and mingle with the balance of the community. . . It is not necessary for theprisoner to prove that they were, during their absence, subjectedto improper influence from others; it is sufficient, if theymight have been. There would be no safety in a different rule of practice; for it would be almost impossible ever to bring direct proof of the fact, that it was done." (Italics supplied.)

In the present case, the nine jurors selected to try the defendant had not been sworn prior to the occurrences set forth in special grounds 7 and 8. However, they had been found competent to serve as such jurors. They would not again be put on voir dire and required to answer under oath that they had not formed any opinion in regard to the guilt or innocence of the prisoner. Nor would they again be required to state under oath that their minds were perfectly impartial between the State and the accused. Members of the jury selected to try the defendant should remain absolutely impartial, whether or not they had been sworn in the manner provided by law. Otherwise, if partiality or conduct of the jury is to be measured only from the moment the oath is taken by the jury, why make even a pretense at seclusion of the jury prior to the time the oath is administered? Such question is answered by the established rules of law and procedure governing jury trials, and by a fair application of the fundamental principles of justice upon which trial by jury is based.

In this case, it was not necessary that actual be charged or shown by the accused, as might be inferred from the majority opinion. It is sufficient when it is shown that the jury could have been subjected to improper influences. The State relies on identical affidavits by the nine jurors, the material part being as follows: "Deponent says that, while they were separated and while they were in the store and while they were in the picture show, on one mentioned the case to him and he did not discuss it with anyone, and nothing whatever happened to influence him in any way in reaching the verdict which he later reached." Not by any word or inference do I intend to question the honesty of the jurors as to the statement appearing in the affidavit made by each of them to the effect that nothing whatever happened to influence them in reaching the verdict later rendered. But how can a juror determine what particular incident, word, statement, gesture, rule, or principle of law may be involved in inclining his mind to one side of an issue rather than to the other? The statement in regard to nothing happening to influence their verdict, however conscientiously made and honestly believed by the jurors, is a mere conclusion, and does not meet the rule that the presumption of injury must be overcome by proper proof. SeeShaw v. State, supra.

What happened while the jury was in the custody of Newsome out of the presence of the bailiff? The jury does not say, nor do we have any word from Newsome. Did members of the general public make some reference, inference, or statement about the case on trial, or do any act in the store, observed or heard by the jury, that may have influenced them in some degree in their verdict? The record is silent. The jury does say that they did not discuss the case with any one. Why did they not say that it was not discussed in their presence by others? The jury may properly make any truthful statement necessary to sustain, but not to impeach, their verdict. The failure of the jury to state that the case was not discussed in their presence is a failure to make necessary proof to sustain their verdict.

It was held by this court in Daniel v. State, 56 Ga. 655: "When the law was violated by the misconduct of the juror, the legal presumption was that the defendant was injured, and it was incumbent on the State to have rebutted that legal presumption, not only by evidence that the juror did not speak to anyone himself, nor did anyone speak to him about the case, butthat he did not hear anyone in the crowd through which he passedexpress any opinion in relation to the case." (Italics supplied.) The facts, as stated by the court in the Daniel case, were as follows: "One of the grounds of the motion for a new trial is, that one of the jurors, after being charged with the case, was allowed to separate from the jury without being accompanied by any officer, and to go across the street to the storehouse of Jones, in the Town of Warrenton, one hundred yards from the courthouse, and return; that there was a crowd of persons there through which the juror was obliged to pass, and did pass, in going to and returning from said storehouse. The fact of the separation of the juror as alleged, is not denied, but he states in his affidavit that he went to the storehouse to get his overcoat; that he did not speak to any one, and that no one spoke to him about said case; but the juror fails to statein his affidavit that he did not hear any person or persons inthe crowd through which he passed speaking or expressing theiropinions about the case." (Italics supplied.)

In Suple v. State, 133 Ga. 601 (66 S.E. 919), a new trial was denied where only one juror was guilty of misconduct, but the court in that case stated: "It appears that the juror neither discussed nor heard discussed the case on trial, or anything relating thereto." (Italics supplied.) But see Monroe v. State, supra; Obear v. Gray, 68 Ga. 187; Silvey v.State, 71 Ga. 554; Smith v. State, 122 Ga. 154 (50 S.E. 62).

In the present case, we have nine jurors mixing and mingling with members of the general public in a store, engaged in general conversation, and the jurors do not undertake to say that remarks about the case on trial were not made in their presence. The statement contained in the affidavit of Rufus Newsome, that: "Affiant is certain that the case on trial was not mentioned in any way, and if there was, affiant did not hear it," is so negative, and questionable as to any knowledge of the affiant, that it does not require further consideration here.

In Glover v. State, 128 Ga. 1 (57 S.E. 101), approved in Barfield v. State, 179 Ga. 294 (175 S.E. 582), it was said: "There may be a state of facts where the evidence, under the law, would demand a conviction of the crime of murder; but under our law, where the punishment to be inflicted for murder is left in the discretion of the jury, under no circumstances can this court say that the evidence demanded a general verdict of guilty which must be followed by the infliction of the death penalty." Since a general verdict of guilty, followed by the infliction of the death penalty, is in no case demanded as a matter of law, slight irregularities may have been sufficient to influence the jury in the imposition of the death penalty, and where irregularities are shown and the law raises a presumption of injury to the accused by reason of such irregularities, and where such presumption of injury is not fully overcome by proper proof, the judgment denying the motion for new trial should be reversed. I am authorized to say that Mr. Justice Duckworth and Mr. Justice Wyatt concur in this dissent.