Smith v. City of Rome , 16 Ga. App. 161 ( 1915 )

Wade, J.

1. Where, on a trial by the mayor and council on appeal, in the case of one who had been convicted hy the recorder of the city on the charge of having violated a municipal ordinance, the evidence and the defendant’s statement had been received and the hearing of the ease concluded, it was not error to exclude the accused from the court-room during the deliberations of the mayor and council as to the judgment to be rendered. Nor is it sufficient ground for a new trial that the city’s attorney, who had conducted the prosecution, and the chief of police, who had aided and advised him in the conduct of the trial, were allowed to remain in the court-room while the accused was excluded, it appearing that neither of these officers took part in the deliberations of the mayor and council, though the chief of police, at their request, informed them as to the amount of the fine imposed in the recorder’s court. If this communication, or the presence of these officers, in the absence of the accused, was an irregularity, it does not appear that it resulted in harm to him.

Decided March 23, 1915.

Certiorari; from Floyd superior court — Judge Wright. October 23, 1914.

John W. Bale, John Camp Davis, for plaintiff in error. Max Meyerhardt, contra.

(а) The right of the accused to be present at his trial does not include the right to be admitted to the consultations of the members of the court with each other while they are deliberating as to the judgment to be rendered.

(б) The mayor and council were sitting as a court, and not as a jury (Flannigan v. City of Rome, 10 Ga. App. 217, 72 S. E. 1099); and the case is not governed by decisions awarding a new trial on account of communication between jurors and others during the deliberations of . the jury.

2. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Bussell, C. J., dissents.