Craig v. State ( 1973 )

GALBREATH, Judge

(dissenting).

I would not set aside the verdict of the jury in this case on the grounds that no poll was taken to ascertain if the verdict was unanimous inasmuch as I do not find that any application was made for such a poll.

T.C.A. § 20-1324 provides:

“The trial judges in all courts of record in which suits are tried by juries, in both criminal and civil cases, shall be required to poll the jury on application of either the state or the defendant in criminal cases and either the plaintiff or the defendant in civil cases, without exception.”

If the attorney for the defendant had requested a poll of the jury, undoubtedly individual inquiries of each of them would have been made. If not, then the refusal of the trial judge to conduct such a poll, or to permit counsel to do so, would have been error. However, in this case no motion to poll the jury was made or acted upon. Instead, defense counsel stated only, . . we feel like maybe the jury should be polled at this time.” Whether or not the jury was to be polled was a decision for counsel to make, and an equivocal observance that “maybe” something should be done also carries within it the idea that “maybe” this should not be done.

Nance v. State, 210 Tenn. 328, 358 S.W.2d 327, cited by the majority, is clear authority for and makes the statement that under our statute “the court is not required to have the jury polled in the absence of a request therefor.”

Evidently counsel for the defense was not adamant on the issue since not only did he fail to convey to the trial court a meaningful desire on his part to have the jury polled but he did not object to its not being polled.

The law presumes regularity. See Jones v. State, 79 Tenn. 468. In the absence of some affirmative showing that the trial judge was in error in overruling a properly presented application of the type under discussion or that the defendant was adversely affected, we should not set aside the verdict of a jury approved by him on a strained technicality.

I respectfully dissent.