Neal v. State , 64 Ga. 272 ( 1879 )

Bleckley, Justice.

1. In Monroe vs. The State, 5 Ga., 86 (10), it was laid down, and the rule has been followed in many subsequent cases, that where there has been an improper separation of the jury during the trial, the prisoner, if found guilty, is entitled to the benefit of the presumption that the irregularity was hurtful to him, the onus being upon the state to show, beyond a reasonable doubt, that it did him no in jury. But must we therefore hold that a like presumption arises out of a proper separation — proper in time, manner and circumstances? Surely not. And what can be more fit than for the court to send out a juror, attended by a bailiff, when he is under a stress of nature which civilized man regards as a summons to retire? A comparison of the various possible methods of meeting and dealing with such an exigency had better be left to silent meditation than discussed here with needless realism. It is enough if those who may become interested in the subject will form a mental picture of the situation, and contemplate it for themselves. It is inferable from the record that the absence of the juror was not for a longer time than was necessary, and he was under the immediate watch and guard of the bailiff all the while. The facts are altogether unlike those of. any of the cases cited by the counsel for the plaintiffs in error, the citations being 10 Ga., 512 (10); 41 Ib., 527 (2); 45 Ib., 225 (8); 47 Ib., 598 (5), and 56 Ib., 653. Compare 14 Ga., 8 (4). The separation discussed in these authorities is improper separation, not a retirement rendered necessary by habits of decency, expressly authorized by the court, and guarded by a sworn officer.

• 2. The record shows a difference of understanding or recollection between the counsel and the presiding judge, as to the terms of the court’s charge to the jury on the subject of circumstantial evidence. Upon such a question the judge is, of course, the better authority in this court.

3. The sufficiency of the evidence to uphold a conviction . depends in a great degree upon the credibility of the witness, Bunion. On the facts in the record we cannot hold, as matter of law, that the jury had’no right to believe him. We feel that there is no alternative but to let their finding prevail.

Judgment affirmed.