Roberts v. State , 14 Ga. 18 ( 1853 )

By the Court,

Nisbet, J.

delivering opinion.

[1.] The grounds relied upon in this bill, are not sufficient, •either to arrest the judgment, or for a new trial. We have no Statute Law, prescribing the form of delivering the verdict of a jury. Our usage is to write the verdict on the indictment— which being signed by the foreman, is handed to the Sol. General in open Court after the jury has been called; and when publicly read, is recorded. This form is in substance that of the Criminal Law, and we cannot _3 advise any departure from it. Yet, when in substance and effect it is observed, even if there be a literal departure, we will not regard that as warranting a new trial, much less an .arrest of judgment. In England the verdict is given in orally. The oral tradition grew out of the unclerkly character of jurors in early times. And now we see no objection to it, inasmuch as it is happily adapted to the free and uncontrolled expression of the mind of the jury, and affords, by reason of its openness and audibility, safe guarantees against conception in any form, or from any quarter. The Clerk then receives the verdict from the lips of the foreman and records it — being recorded, it is read to the jury and their assent invoked, and when that is given it stands. The form of procedure is as follows: The jury having returned into their box, the Clerk calls the jury each by his nanft, and then asks them whether they have agreed on their verdict, to which they reply (if the fact be so) in the affirmative. He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his hand, and addresses the jury thus: “ look upon the prisoner, you that are sworn; how say you; is he guilty of the felony whereof he stands indicted, or is he not guilty.” He then writes the word guilty or not guilty, as the verdict is, after the words “po se ” on the record, and again addresses the jury thus : “hearken to your verdict as the Court hath recorded it; you say that A. B. is guilty (or not guilty) of the felony whereof he stands indicted, and so say you all.” Assent being given, the verdict is delivered, (1 Chitty’s Crim. Law, 518.) This process identifies the jury and the prisoner, and the of-fence — ascertains unanimity — and is a public and solemn promulgation of the finding. The foreman is the spokesman of the jury by their own election, and the usage of the Courts has given him legal sanction to his character as such. He who acts as foreman, is presumed to be the foreman by choice of the jury. In the case before me, the verdict was written on the indictment, but not signed — it was handed to the State’s officer by one of the jury, after the jury was called. He was in that act to be recognized as the foreman. Whether he was or was not foreman, however, we hold to be unimportant; for we do not think that the validity of the verdict depends upon the fact of there being a foreman to the traverse-jury at all. The verdict thus written was publicly read — read in the hearing nf the whole jury. It was their act by assent, no objection being made to the verdict. The prisoner had the right to poll the jury — his counsel was asked, after seeing the verdict, if he desired to poll them, to which question a negative response was given. After it was read, and not until then, it was ordered to be recorded, and it appears on .the record in immediate connection with the list of the jury, as the verdict of that jury in the case, which is also stated on the record. Without doubt, this record would fully sustain a plea of autre fois convict.

[2.] The prisoner ivas represented by counsel on the trial, and- the examination of witnesses was conducted by one of them. After a full cross-examination of one of the witnesses called for the State, the prisoner asked leave to examine him further, which was refused; and this is complained of as violating his constitutional right of defence by himself, his counsel, or by both. His right was not violated. He appeared in person and by his counsel. He was entitled to conduct the examination, and if he had asked leave to do so in the outset, the request no doubt, would have been granted. He did not think proper to make the request, but devolved that service upon his counsel. Having arranged with counsel, that one of 'them should conduct the examination, the Court held him to it. Had he not held him to it, he would have compromitted the order, decorum and efficiency of the Court. The presiding Judge in the Courts of this country, has the power to prescribe the manner in which business shall be conducted — a power which it is not absolutely certain, the Legislature can take from him, unless it is exercised -in such way as to involve a deprivation of right. All rights in a Court of justice are of necessity, enjoyed through forms of procedure — indeed, the rules of the Court, and the ever-present power of the judge, to maintain order — to prevent unnecessary consumption of timo, and to discipline the action of the Court in ways and at times, and under circumstances which do not admit (in a Judges opinion!) of specification, are indispensable to the fullest enjoyment of every right. What Judge Starke did in this case, was nothing more nor less than to enforce the usual rule of the Court, as to the manner in which the prisoner should exercise his constitutional right of defence in person. As well might he complain, that he was denied the right of trial by jury, because the Law prescribes the manner of summoning and selecting his jury.

The prisoner had a fair trial, and was justly convicted of being a “rogue and a vagabond.” This question admits of profitable discussion, but as with some of our professional brethren, brevity is not only the tost of wit, but also of learning. I will only add, that the judgment below is affirmed.