1. Although to ask counsel publicly in the presence of the jury trying the case whether the jury should be allowed to disperse is error (Bragg v. State, 15 Ga. App. 623, 84 S.E. 82), nevertheless, this court can not consider any complaint thereof in the absence of a timely motion for mistrial based thereon. Herndon v. State, 45 Ga. App. 361 (4) (164 S.E. 478); Waddell v. State, 29 Ga. App. 33 (5) (113 S.E. 94); Georgia Power Co. v. Manley, 47 Ga. App. 431 (2) (170 S.E. 543).
2. If during the trial of a criminal case there is an unauthorized separation of the jury, affording some of the jurors the opportunity to mingle with other persons not on the jury, it is presumed to be injurious to the defendant and the burden is on the State to show that the accused sustained no injuries thereby. Silvey v. State, 71 Ga. 553; Hughes v. State, 159 Ga. 822 (127 S.E. 109). However, the unauthorized separation of the jury will not of itself require a new trial. Prejudice must have resulted from such separation; and where it is affirmatively shown that the jurors who temporarily separated themselves from the jury had no communication with any one upon the subject of the trial, either directly, by conversation, or individually, by hearing the observations of others, the presumption of injury arising from such irregularity would be sufficiently rebutted. Waller v. State, 2 Ga. App. 636 (58 S.E. 1106).
3. The verdict was authorized by the evidence.
DECIDED MAY 20, 1947. The defendant was tried in the City Court of Douglas on an accusation charging that he did, on the 5th day of November, 1946, in said county, then and there unlawfully and with force and arms, sell and barter for a valuable consideration, alcoholic, spiritous, vinous and intoxicating liquors and beverages, without having obtained a license for the sale thereof.
During the progress of said trial and immediately before the noon recess of said court, the presiding judge, in the presence and hearing of the jury, inquired of counsel if it was desired that the jury be kept together during the noon recess. Upon said inquiry being made, counsel for the defendant objected to the allowance *Page 187 of the dispersal, and announced that it was desired that the jury be kept together, and it was thereupon so ordered by the court, to which said inquiry the defendant then and there excepted.
Following the noon recess and without the defendant's permission and consent, two of the jurors upon returning from lunch with the remaining jurors, instead of going into the jury room, came into the courtroom and mingled with persons in said room who were not on the jury. Immediately upon this fact becoming known to the counsel for the defendant and before the verdict of the jury, counsel for the defendant moved for a mistrial.
The only witness, R. V. Young, testified for the state as follows: that he knew the defendant, Aldene Johnson; that on November 5, 1946, he bought a quart of whisky from Johnson and paid him $8 for said whisky and 25 cents cab fare to go get it; that prior to that time he had not known him; that (indicating the bottle labeled whisky which was allowed in evidence) was whisky he bought from the defendant and that no license for sale of whisky was exhibited to him at the time he made the purchase; that he was able to identify the bottle (indicating) by certain marks, that are on the label, made with a pencil at the time. Young testified that he lived at Fitzgerald in Ben Hill County; that he had not bought any whisky from the defendant prior to that time or since; that he did not buy whisky from anyone else in Douglas on that date; that the defendant did not offer to sell whisky to him but that he, Young, had looked the defendant up and asked him to get it for him.
There was allowed in evidence a brown bottle labeled whisky, on which the seal was unbroken, on the label of which were certain markings with pen or pencil, said by witness Young to have been placed thereon by him. This bottle was sent out with the jury and returned with the verdict, the seal remaining unbroken. The defendant made a statement in which he denied having sold any whisky to the witness Young; denied that he knew him or had ever seen him and further denied that he had ever sold any whisky to any one.
The jury convicted the defendant and after sentence he filed a motion for a new trial, which was amended, assigning as error:
1. Misconduct of the court in publicly and in the presence of the jury, asking counsel about dispersal for lunch. *Page 188
2. Ruling of the court refusing the granting of mistrial on account of unauthorized separation of jurors.
3. Because the evidence did not show beyond a reasonable doubt that the bottle in question contained whisky and that the witness for the state failed to identify sufficiently the bottle as being the one he claimed to have purchased from the defendant.
Upon hearing, the court overruled the motion for new trial, to which judgment the defendant excepts. 1. In the case of Lyman v. State, 69 Ga. 404 (8), it is said: "It has been ruled several times by this court, that to ask counsel publicly in the presence of the jury trying the case whether it should be allowed to disperse was improper, and we reaffirm that rule, because jurors not only dislike the confinement but believe that the refusal to allow them to disperse is an attack upon their integrity." The reason for this rule is apparent, their natural inclination being to blame counsel refusing to agree to their dispersal. Trial judges should jealously guard against the commission of this error. However, in order for the defendant's rights to be preserved, his counsel must make a motion or "exception," a ruling on which will erase the error. If he only objects or excepts, neither the sustaining nor the overruling thereof, would do so. This error can only be erased by the grant of a mistrial, for which no motion was made in the instant case upon this ground. See Herndon v. State, Waddell v. State, and Georgia Power Co. v. Manley, supra.
2. Regarding the second headnote, it is observed that after counsel objected to the dispersal of the jury, the trial court gave proper instructions to the jury to keep together, but two of the jurors, probably inadvertently, disobeyed these instructions, and upon returning from lunch, instead of going into the jury room with the remainder of the jurors, went into the courtroom where they had the opportunity to mingle with other people, not on the jury. While this is presumed to be hurtful to the defendant and the burden is on the State to show that the accused sustained no injuries thereby, as held in the cases cited in the headnote, we are of the opinion that this burden was carried by the State in the manner provided for in the case of Waller v.State, supra. *Page 189
3. The State's witness testified that he bought a quart of whisky from the defendant, paying $8 therefor and 25 cents cab fare to go get it. He exhibited a bottle filled with liquid, labeled "whisky," sealed and bearing certain pencil markings identified as having been made by witness. The facts in the instant case differ from those of the case of Elrod v. State,39 Ga. App. 482 (147 S.E. 594), in that there the containers and their contents were not offered in evidence. In that case the State's witness testified in substance that Elrod left a suitcase in the back room of the store in which the witness was employed, containing fruit jars filled with a liquid that looked like whisky and beaded like it when he moved the suitcase. He had previously observed Elrod and another go in there and upon coming out the other would be under the influence of liquor. In that case the evidence was held insufficient.
In the instant case the State's witness, without objection, testified that the contents of the bottle was whisky. Had timely objection then been interposed to this testimony it would doubtless have resulted in opening the bottle. The bottle was labeled whisky. The witness testified he bought it for whisky. The witness identified it by pencil marks he said he put on it. It bore pencil marks.
We think the evidence is sufficient to support the verdict.
Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.