Ball v. State , 9 Ga. App. 162 ( 1911 )

Hill, O. J.

George Ball was convicted of robbery, and sentenced to imprisonment in the penitentiary for twenty years. His motion for a new trial was overruled, and he brings error.

The evidence showing the commission of the crime was clear, strong, and uncontroverted. There is some evidence which identifies the defendant as the criminal, consisting of the rather uncertain opinion of the person who was assaulted and robbed that the defendant was the man who assaulted and robbed him, and slight circumstances of corroboration. The jurors believed this evidence sufficient, and this conclusion must be accepted by this court. We do think, however, that the evidence as to identity was weak and unsatisfactory, and for this reason we have more readily come to the conclusion that a new trial should be granted because of a colloquy between the trial judge and the jury which, we think, was a violation of the spirit, if not the letter, of the Penal Code (1910), § 1058.

.After the jury had been out some time considering the case, the judge had 'them brought back into the court-room and said to them: “I had you brought in, gentlemen, because you sent me word that you were not likely to agree. I thought, if I had you brought in, perhaps you might ask me some question. Does any juror wish to ask the court any questions? Tf so, do so.” A juror answered: “I would like to know something about the time when he was in the store, when number 11 ran.” The court said: “I do not remember much about the time. I do not think A. L. Kimsey swore much about it.” The court then had the reporter to read to the jury the evidence of A. L. Kimsey, and asked them how they stood, and one juror answered, “Eleven to. one.” The judge then sent the jury back to resume their consideration of the case. Subsequently the judge again sent for the jury, when the following colloquy took place: The court: “I have brought you back, gentlemen, as, if you can not agree on a verdict, I might as well declare a mistrial. How does the jury stand now?” Juror: “We stand just as we did before, eleven to one.” Court: “Do you think there is any likelihood of agreeing?” Several jurors: “There is not.” Court: “Well, usually where the jury stands eleven to one, the one juror comes to the elevenbut, of course, you must be guided by your own consciences, as the one might be right and the eleven wrong. Was there any other question any of you wanted to ask?” One juror: “No, sir.” Court: “You can retire, gentlemen, and consider your verdict.” Soon thereafter the jury found a verdict of guilty. When this conversation was had between the judge and the jury, counsel for the defendant moved the court to declare a mistrial, taking the position that‘the statement of the judge to the jury was improper and was calculated to impress the one juror that it was his duty to surrender his conviction and to agree with ¡the eleven. The court overruled this motion, and this colloquy between the judge and the jury is one of the grounds of the motion for a new trial.

We think that it is a.dangerous practice, and one of very doubtful propriety from a legal standpoint, for the judge to ask the jury in a criminal ease how it stands; and, where the evidence of guilt is weak, the practice becomes pernicious; it is presumptively hurtful when, on information that the jurors stand eleven to one, the trial judge even remotely suggests to the one juror that he ought to surrender his conviction to that of the majority. A juror is usually so responsive to any suggestion made by the judge as to his duty in the trial of a ease, or in the consideration of the evidence, that the judge should be careful not to say anything that could possibly be construed by any member of the jury as indicating that it would be proper for him to yield his personal views of the evidence and shift his individual responsibility to the majority. Whatever.difference of opinion may be entertained on the policy of the law of this State in requiring a unanimous verdict, it is unquestionably true that this policy is imbedded in our criminal jurisprudence as one of its cherished principles, and to persons on trial for criminal offenses is one of the most valuable guaranties of life and liberty. Nothing should be said by the judge that could in any manner tend to destroy this great privilege of a jury trial, or in any degree detract from its force and effect.

When the judge told the jury in this case that, where the jury stands eleven to one, the one juror usually come to the eleven, this one juror, who doubtless in this case was for acquittal, may probably have inferred that this declaration by the judge as to the usual conduct of the one juror could be properly followed by him, and that he should abandon his conviction or doubt as to the guilt of the defendant and agree with the other eleven. This is a very rational deduction from the language of the judge, and the reasonableness of this deduction is strengthened by the fact that the jury had been considering the question for some time before the colloquy with the judge, without being able to come to a unanimous conclusion, but that very soon after the colloquy took place a unanimous verdict was returned. ,.

As before intimated, if the evidence in this ease were strong and clear as to the identity of the defendant as being the criminal, we should probably treat the statement of the judge as harmless error; but as the evidence on the question of identity is not entirely satisfactory, and, in addition to this, the defendant proved by well-known white citizens that his character was good, as a law-abiding colored man, we are constrained to believe that the statement of the judge to the jury that “usually the one juror comes to the eleven” was sufficient in all probability to have encouraged the one juror to abandon his individual views and convictions, and, in deference to the intimation expressed by the judge, to agree with the eleven.

Judgment 'reversed.