Garner v. State

1. The evidence authorized the verdict.

2. "In civil as well as criminal cases jurors may be placed upon their voir dire and examined as to their impartiality, but in such examination the questions should be limited to the partiality or impartiality of the jurors in reference to the particular case and the parties thereto." Sullivan v. Padrosa, 122 Ga. 338 (50 S.E. 142).

3. "In misdemeanor and civil cases there is no statutory provision regulating the method to be adopted by the court in determining the competency of the juror; but the settled rule is that either party has a right to request that the jurors be put upon their voir dire in order that their competency may be determined. When such request is made it is the duty of the court to propound, or cause to be propounded, such questions as will test the competency of the jurors to pass upon the issues in the case. The questions to be asked in each case are to be determined by the court, and what shall be the character and number of the questions is left largely to the discretion of the judge, who must keep in mind all the time the object to be attained, that is, the determination of whether the minds of the jurors are in such a condition that they can pass fairly and intelligently upon the issues to be submitted to them. See Justices of Inferior Court v. Plank Road Co., 15 Ga. 39, 41; Howell v. Howell, 59 Ga. 145; Holton v. Hendley, 75 Ga. 847 (2); Haney School Furniture Co. v. Hightower Institute, 113 Ga. 289, 293 (38 S.E. 761); Penal Code, § 855. While counsel may suggest questions to be asked, they have no right to insist that the questions as framed by them shall be adopted by the court." Hall v. State, 64 Ga. App. 644, 646 (13 S.E.2d 868).

4. The judge did not err in that he abused his discretion when he refused to allow the jurors to answer the questions propounded to them by the defendant's counsel.

5. The other exceptions are not meritorious.

DECIDED MAY 30, 1942. REHEARING DENIED JULY 31, 1942. Only the ground designated (a) of the petition for certiorari will be here discussed. The error assigned in that ground is that "the court refused to allow counsel for the plaintiff in error to qualify the jury by asking the individual members thereof certain questions hereinafter referred to."

The defendant was convicted of the charge of lottery, a misdemeanor. The judge allowed the defendant's counsel to propound to all the jurors the question, "Have any of you contributed any money towards any funds that have been used in the prosecution of the lottery investigation in Fulton County — funds or anything of value towards that prosecution?" All the jurors answered, "No." Two jurors were asked the question, "From having read the newspapers in the City of Atlanta and elsewhere, including editorials and pieces that appeared on the front page of the newspaper, have you formed or expressed an opinion as to the operation of the lottery in Fulton County, Georgia?" The court did not require the jurors to answer this question. Another question that the court did not require the jurors to answer was, "Have you served on any grand jury in the last twelve months in Fulton County wherein said grand jury investigated the lottery activities in Fulton County — made a general investigation of it?" Also, while the jurors were being qualified, the following occurred: Mr. Bentley, attorney for the defendant, questioned W. Stanton Hale, a juror, and Mr. Hale answered as follows: Q. "How many terms since you were on the Fulton County jury?" A. "January and February terms of this year." Q. "Did they investigate the lottery activities at that time?" A. "No sir, but I was on it a term two years ago when they did." Q. "Did they have a general investigation of it then by the solicitor's office?" A. "There was a thorough investigation by the previous grand jury; it was what you'd call a general investigation." Q. "Were any facts brought in that were brought over from the previous grand jury?" The court: "I will not require him to answer that." Mr. Golightly: "It would be revealing the grand jury secrets and he is not compellable to answer." Mr. Bentley: "It would not. I can ask him anything that happened in that room and he has to tell me." The indictment in the instant case was found at the April term, 1941, and the trial was held in May, 1941. There are six terms of the superior court in Fulton County, and each has a grand jury.

"If for any reason the impartiality of any one or more of the jurors whose names appear on the panel is suspected, the proper method of determining the state of feeling of such juror or jurors is by a challenge to the polls, and when thus challenged they may be put on their voir dire. And this is the rule not only in the trial of criminal cases where the charge amounts to a felony, but in the trial of misdemeanors as well." Thompson v.State, 109 Ga. 272 (2) (34 S.E. 579); Wells v. State,102 Ga. 658 (29 S.E. 442). A challenge to the poll only invokes the right to ask the juror the questions prescribed in Code § 59-806, that is, the voir-dire questions. Jones v.State, 90 Ga. 616, 625 (16 S.E. 380). If the juror is put upon the court as a trior, the examination may be extended; and when thus extended, "The questions to be asked in each case are to be determined by the court, and what shall be the character and number of the questions is left largely to the discretion of the judge, who must keep in mind all the time the object to be attained, that is the determination of whether the minds of the jurors are in such a condition that they can pass fairly and intelligently upon the issues to be submitted to them." Sullivan v.Padrosa, 122 Ga. 338, 340 (50 S.E. 142). See also Jones v.State, supra. The judge did not err in that he abused his discretion when he refused to allow the jurors to answer the questions propounded by the defendant's counsel. The overruling of the certiorari was not error.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.