Groves v. State , 162 Ga. 161 ( 1926 )

Gilbert, J.

The Court of Appeals certified certain questions, which are sufficiently indicated in the headnotes. In order to return a correct answer to the questions propounded, it is essential to first state some of the basic principles involved, and to bear in mind the character of the proceedings.

What is a verdict and what does it mean? In Anthony v. Anthony, 103 Ga. 246, at p. 251 (29 S. E. 923), this court said, the meaning of the word verdict is a “true saying.” “A verdict is .the ascertained truth to which effect is given by the judgment of the court.” Vaughan v. Cade, 2 Rich. (S. C.) 49, 52. “A verdict is a declaration of the truth as to the matters of fact submitted to the jury.” Shenners v. West Side St. Ry. Co., 78 Wis. 382, 387 (47 N. W. 622); McBean v. State, 83 Wis. 206, 211 (53 N. W. 497). In fact the word imports verity, and we may add that whenever a verdict is not “a true saying” and is not a verity, its meaning, as said in Anthony v. Anthony, “is set at naught and rendered ridiculous.” “It is a very important act. It is a culmination of the trial, and embodies the conclusions of the jury on the questions of fact litigated upon the trial.” French v. Merrill, 27 App. Div. 612 (50 N. Y. Supp. 776, 777). It is a part of a legal investigation in a court; and our Penal Code, § 1008, declares: “The object of all legal investigation is the discovery of truth.” In its highest conception “a court is a place where justice is judicially administered.” It would appear that a verdict delivered into coiirt by a jury, which does not comport with the findings of that jury, is not a true 'saying. It would not speak the truth as the jury found it. The jury’s oath is to give a “true verdict.” A verdict declaring contrary to the findings of the jury is not a true verdict. To hold otherwise would be to treat a solemn legal investigation as a game where victory may be won by inadvertence and methods that are worse. We do not overlook the fact that there are certain fundamental safeguards properly thrown around the defendant in a criminal case, which may free a guilty man; such as the constitutional inhibition against placing one in jeopardy a second time, the necessity for receiving verdicts in open court, the privilege and necessity of the presence of the accused at all stages of the trial, the benefit of counsel, etc. The principles above stated are not contrary to any of these. Though the powers of judges are more limited in this State than those possessed by the English judges, yet it has always been recognized in Georgia, and, so far as we are aware, in other American States, that the trial judge has the power to send the jury back for further consideration of the case where it is uncertain that the jury intended to find as their verdict purports. Cook v. State, 26 Ga. 593; Mangham v. State, 87 Ga. 549, 552 (13 S. E. 558); 16 C. J. 1098, § 2576; 38 Cyc. 1874, notes 56, 60; 25 Standard Enc. Proc. 1031 (5); compare Williams v. State, 46 Ga. 647.

There being no controlling statute in this State, the common law prevails. Under the English common law, until the verdict was accepted by the court and recorded, the jury could be sent back for a reconsideration whenever it appeared that the verdict was not correct in form or was uncertain or did not speak the truth. In Coke upon Littleton, 227, 7 R. 2, it is said: “After the verdict recorded the jury can not vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand.” In 2 Hale’s Pleas of the Crown, 299, it is said: “Now touching the giving up of their verdict, if the jury say they are agreed, the court may examine them by poll, and if in truth they are not agreed, they are fineable. 29 Assiz. 27. 40 Assiz. 10. If the jurors by mistake or partiality give their verdict in court, yet they may rectify their verdict before it is recorded, or by advice of the court go together again and consider better of it, and alter what they have delivered. Plow. Com. 211, b. Saunder’s case.” At common law it was not customary for the jury to write out the verdict, as it is now done in this State, in criminal cases. In many civil cases in this State verdicts are now prepared for the jury to sign. Formerly at common law, “The procedure in returning verdicts in cases of felony, leaving off some of the formalities in reference to forfeiture of estates, is in substance as follows: When the jury have come to a unanimous agreement with respect to their verdict, they return to the box to deliver it. The clerk then calls them over by their names, and asks them whether they agree on their verdict, to which they reply in the affirmative. He then demands who shall say for them; to which they answer their foreman. This being done, he directs the prisoner to hold up his right hand, and addressing the jury says: ‘Look upon the prisoner, you who are sworn. How say you? Is he guilty of the felony whereof he stands indicted, or not guilty?’ The foreman then answers ‘guilty’ or ‘not guilty,’ as the verdict may be. The officer then writes the word ‘guilty’ or ‘not guilty,’ as the verdict is, on the record, and again addresses the jury: ‘Hearken to your verdict, as the court hath recorded it. You say that (A) is guilty (or not guilty) of the felony whereof he stands indicted, and so say you all.’ 1 Chitty, Crim. L. 636; Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220; Givens v. State, 76 Md. 485.” Grant v. State, 33 Fla. 291 (14 So. 757, 23 L. R. A. 723, 728, 729).

An English case very similar to this case was Reg. v. Vodden, 6 Cox’s Criminal Law Cases, 226. In that ease the prisoner was tried for larceny. One of the jurors, called chairman, delivered a verdict of “not guilty,” which was entered by the clerk on his minutes, from which the record is made up. The prisoner was thereupon discharged out of the dock. The other jurors at that time interfered, with the statement that the verdict was “guilty.” Then the prisoner was brought back into the dock, the jury was asked what the verdict was, and all twelve of them answered that it was “guilty,” and that they had been unanimous. The chairman of the jury stated that he had said “guilty,” and not, as he was understood to say, “not guilty.” The counsel for the prisoner objected to the receipt of the new verdict, for the reason that “the wrong verdict is now on the record of the court.” The judges held that “a wrong verdict was taken in the first instance,” and that a true verdict was correctly received. Counsel insisted that an interval had elapsed between the announcement of the first verdict and the receipt by the court of the second; whereupon the judges said: “We say only that the interval in this case was not too long; we are all agreed that what took place was quite right. It is what constantly occurs in ordinary transactions of life, — a mistake was corrected within a reasonable time, and on the very occasion when it was made.” Accordingly the conviction was affirmed.

The American courts, so far as we are aware, have stated, in almost the same words always employed by the English courts, that the jury could be returned for further consideration of a case until the verdict had been accepted and recorded. As modified, in this State, the rule is well settled that after a poll of the jury or a discharge of the jury the court no longer has any power to return the jury to their room for further consideration. Also, it is well to state that any control over the jury must be very carefully exercised, to the end that the jury may not be influenced in the slightest as to their finding by anything that the judge may have said to them in regard to reconsidering the case. It is equally well settled that until the jury has been polled and the verdict has been received as the true verdict of the jury any juror may bring to the attention of the court the fact that the verdict announced is not his verdict. “It is within the power of any juror before leaving the jury-room, or even after coming into court, to recede from the verdict to which he has previously assented at any time before it has become too late to poll.” Cooper v. State, 103 Ga. 63, 65 (29 S. E. 439). A similar case is Harris v. State, 31 Ark. 196, where it was held: “The object in polling the jury is to ascertain if the verdict announced by the foreman is the verdict of all the jurors; and if there is any reason to doubt that all the jurors concur, it is competent for the court, of its own motion, to cause the jury to be polled.” Another case in which the question was elaborately considered is Grant v. State (Ela.), supra. There the jury returned into court a verdict in the following words: “We, the jury, find the defendant guilty of manslaughter in the first degree.” The court stated to the jury that there were no degrees of manslaughter, and that accordingly the verdict was not in form, requiring them to return to their room for further consideration. The jury returned to their room, and afterwards, on the same day, returned a verdict as follows: “We, the jury, find the defendant guilty of murder in the first degree, and recommend him to the mercy of the court.” The defendant filed a motion for new trial, one ground of which was that the court erred in rendering judgment on the second verdict and refusing to accept the first one, “for the reason that the verdict for manslaughter in the first degree operated as an acquittal of said offense of murder, the latter being a higher offense and embracing the former.” The Supreme Court of Florida affirmed the judgment of the trial court, but agreed with the contention of the plaintiff in error that the verdict first rendered might have been lawfully received, as the words “in the first degree” after the word “manslaughter” could have been treated as surplusage. The ruling of the court was summed up as follows: “We can not say, however, that the court erred in referring the matter to the jury for correction in the particular mentioned; and when this was done, they had the right to reconsider the case and bring in a new verdict.”

There is no suggestion in the questions propounded that the court influenced the jury in this case in the slightest to make a change in their verdict. It is assumed that the court made no comment, directly or indirectly, calculated to lead the jury to find a verdict of guilty. We repeat, “The object of all legal investigation is the discovery of truth.” There must be the unanimous assent of the entire twelve jurors before- there is a legal verdict. When it develops that such is not the fact, there is no verdict. If the jury has not dispersed, they should be sent to the jury-room with direction to consider the case for the purpose of reaching an agreement on a verdict. In no other view can justice be judicial]}'' administered. Daniel Webster said, in his eulogy of Mr. Justice Story, “Justice, Sir, is the great interest of man on earth. . . Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race.”

All the Justices concur, except