Statham v. State , 84 Ga. 17 ( 1889 )

Bleckley, Chief Justice.

1. Two complaints are made of the juror Barr. Eirst, that he lodged with Mahaffey, one of the counsel for the State, as an inmate of his house, from the commencement of the term up to the time he was selected and sworn as a juror for the trial of this particular case. It appeared, however, that he was a boarder in Mahaffey’s house, paid board, knew nothing of Mahaffey’s relation to the case until the trial opened, and had not heard anything said touching the same, either by Mahaffey or any one else in the house. Ilia business relation with Mahaffey as a mere boarder tended in no way to disqualify him for the functions of an impartial juror. He paid for his board, and therefore was no recipient of any favor, as were the jurors in Walker v. Walker, 11 Ga. 203; Walker v. Hunter, 17 Ga. 364; and Springer v. State, 34 Ga. 379. Moreover, this relation of landlord and boarder was not continued after the trial commenced, nor does it appear that its previous existence was unknown to the accused parties and their counsel. If they knew of it, and if it was cause of challenge to the favor, they should have taken advantage of it as such before the juror was accepted and sworn.

2. The second ground of complaint is that this same juror said in the presence of his fellow-jurors, while the trial was in progress and before the ai'gument was concluded, that it would not require more than twenty minutes for him to find a verdict after going out. He denied by affidavit that he made any such remark, and there is no proof that he did make it except by the affidavit of one of the jurors, and he was incompetent to establish the fact, if so doing would go to impeach the verdict. But aside from this, the two affidavits would set off each other, to say nothing of that made by a third juror, who testified that he heard no such remark. Furthermore, as the observation, even if made, did not indicate which way the juror was ready to find, it was hardly calculated to influence the minds of the other jurors unduly, and would not, as we think, be such misconduct as to lay the foundation for a new trial.

8. Touching the merits of the case, we need say only that we have examined the evidence carefully, and consider it quite sufficient to warrant the verdict as to all three of the accused found guilty. Relatively to one of. them, M. J. C. Statham, the inculpatory evidence was wholly circumstantial, but the circumstances were very forcible. They showed a motive on his part to instigate the outrage which was committed on the prosecutor, and that he was neither surprised at it, nor, so far as appears, had curiosity enough to inquire why it was committed. "When the prosecutor was brought to his house late at night, he received him in a sort of matter of course way, and proceeded at once to act upon the information which, the rioters by their abuse had extorted from him, and upon that information sued out warrants immediately. "We think the jury could well conclude that he was at the bottom of the whole business, and that, although not immediately present at the hanging and whipping of the prosecutor, he was their accomplice in their merciless and outrageous midnight rioting. If he was, his absence from the scene of the offence would not prevent him from being a principal in the misdemeanor. Kinnebrew v. State, 80 Ga. 232.

4. The nowlydiscovered evidence does not go directly to any main fact, but only tends to impeach some of the State’s witnesses as to a particular circumstance. Ve think it is not sufficiently material to call a new trial. Judgment affirmed.