Campbell v. State , 144 Ga. 224 ( 1915 )

Lumpkin, J.

The headnotes sufficiently show the points decided, and, with one exception, require no elaboration. That exception is the ruling as to the sustaining of the challenge to the juror. It was held in Dumas v. State, 62 Ga. 58, that where a county commissioner took part officially in promoting a prosecution, by voting county funds to pay a reward for the prisoner’s apprehension, by aiding to employ counsel to prosecute, and by aiding' in the preparation of the case, which was tried under a special presentment of the grand, jury, he should be considered as a voluntary prosecutor, and that his nephew was not a competent juror. In Lyens v. State, 133 Ga. 587 (66 S. E. 792), it was held, that where one contributes to a fund to be used in the employment of an attorney to aid the solicitor-general in the prosecution of a particular person for an alleged - offense with which he is charged, and the attorney renders such aid upon ,the trial of the case, the person so contributing is to be considered as a voluntary prosecutor, and that one who is related to such prosecutor “within the fourth degree” "(why the fourth instead of the ninth is not apparent) is not competent to sit as a juror on such a trial. In a criminal case the State is the real party. But the prosecutor is so .far a party that his relatives within the prohibited degree can not sit upon the jury. Penal Code (1910),■§ 999, par. 4.

The two eases above mentioned carried the rule to the extent stated. In Atkinson v. State, 112 Ga. 411 (37 S. E. 747), it was held that the fact that a juror is closely related to one acting as a partisan of the State in a criminal prosecution affords no ground for challenging such juror for cause. In the record on' file in the clerk’s office of this court it appears that such partisan actively assisted the solicitor-general in the prosecution, by assisting in striking the jury, prompting questions, and suggesting witnesses. Assuming it to be settled that there may be such a thing as a voluntary prosecutor by reason of contributing money to aid the prosecution, and that such a person is not a partisan only whose act evidences bias, but is a quasi prosecutor, nevertheless, in the trial of one charged with a capital felony, we are unable to see how there can be such a thing as a voluntary defendant. The employee of a person contributing to pay counsel for the accused is not disqualified as a matter of law by reason of such relation. In the present case no motion was made to put the juror upon the court as a trior, on the ground of bias. Without referring to the time when the motion was made, it was error to grant it. The error was material.

Judgment reversed.

All the Justices concur, except Beck, J., absent.