Dumas v. State , 62 Ga. 58 ( 1878 )

Bleckley, Justice.

The court committed only one error in the progress of the trial, and that was in pronouncing Lester a competent juror. We think he was incompetent by reason of his relationship to his uncle Barrett, who had been active in promoting the apprehension and prosecution of the accused. It was not the official duty of the uncle so to act by virtue of his station as a county commissioner. He must, we think, be treated as a volunteer prosecutor, and as having committed himself personally and in his private capacity to the side of the prosecution. If by his co-operation any of the county revenue was expended in a reward, we do not see why he cannot be legally coerced to refund it. As a county commissioner he had no authority to devote the public money to such an object. But whether money was expended or not, he seems to have taken the position of an active prosecutor, and we think it makes no difference that his name was not marked on the presentment or indictment. Nor does it make any difference that the nephew declared on oath his ignorance of his uncle’s participation in the proceedings against the accused. We understand this declaration to have been made whilst his competency was under investigation. Np to that time he was ignorant, but we can see no reason to think that he remained so. As he was present when the matter was examined in open court, there is every probability that he became enlightened by the same means which enlightened the court. When adjudged competent as a juror, he most probably knew which side his uncle had taken, and how his interest against the accused had' been manifested. In nothing which we have said do we intend to discourage any citizen from prosecuting, or aiding to prosecute, in this or any other case. Such a service is often invaluable to the public welfare and the cause of justice. So far from being reprehensible, it is highly meritorious. But it is our duty to say, and to hold, that the active prosecutor of an offender is incompetent to try him as a juror, and so are his near relations. The head-notes and the reporter’s statement being so full, it is unnecessary to add more.

Judgment reversed.