Groves v. State

Russell, C. J.,

dissenting. One reason why I can not concur in the opinion of the majority is that my associates’ answer to the question is very plainly based in part upon facts not to be ascertained from the question, and this court has several times held that its answer to a questipn certified by the Court of Appeals will be confined absolutely to the identical question asked. It has even declined in one instance to answer questions propounded by the Court of Appeals, upon the ground that to intelligently answer it would be necessary to examine the record, which the court ..declined to do. ‘It is said in the opinion that “there must be unanimous assent of the entire twelve jurors before there is a *167legal verdict.” The Court of Appeals states as a fact that the verdict of not guilty was “regular in form” when it was returned and published in open court. There is no evidence before us to indicate that there was any miscarriage of justice in this verdict of not guilty, and possibly the evidence before the Court of Appeals would have authorized the jury to find a verdict of not guilty. In these circumstances the- Court of Appeals inquires whether the judge has any legal right or authority on his own motion to poll the jury. It is true the question proceeds to say that “when some of them said that the verdict was not their verdict,” has he the power to refuse to receive the verdict and direct it to be erased, and direct the jury to retire to their room and consider the case further? It seems to me that the first question to be answered is whether the judge has the right in any event to poll the jury. If he has no right to poll a jury, what he may have done after having polled it would necessarily be nugatory and' void. I am fixed in the conviction that a judge in this State is neither authorized nor permitted of his own motion to poll a jury. I care not for the holdings of English courts. I care not for decisions from other jurisdictions in this country. I am bound by the laws of Georgia, while other authority can in no event be more than persuasive. This court has frequently held that the right of polling a jury was one of very great value to one accused of crime; so much so that this court has never failed to reverse the lower court where there was any substantial infraction of the right. In Blankinship v. State, 112 Ga. 402 (37 S. E. 732), Mr. Chief Justice Simmons, delivering the opinion of the court, reversed the trial judge for refusing a new trial, although there was an attempted poll of the jury, upon the ground that the question was not propounded to the jurors individually and separately. See also Black v. Thornton, 31 Ga. 641; Campbell v. Murray, 63 Ga. 86. There is no statute in this State providing for the polling of the jury after verdict. But upon reason and principle, inasmuch as this court has held that it is a right of the defendant in a criminal case, and inasmuch as in this State the State is not permitted to make a motion for a new trial, or to try a second time one who has been found not guilty, it may follow that the State has no right to poll. Be this as it may, even if the strong statements of the right of the accused to poll the jury do not bring the *168case within the maxim expressio unius est exelnsio alterius, the expression of the one is the exclusion of another, there is to my mind a paramount reason why a judge should not be permitted on his own motion to poll a jury. In 1850 the General Assembly of Georgia saw fit in its wisdom to pass what is known as the “dumb act,” which is now embodied in section 1058 of the Penal Code. This Georgia law declares: “It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such case reversed, and a new trial granted, with such directions as the Supreme Court may lawfully give.” Whatever may he the rule in other jurisdictions, our code section is designed to absolutely prohibit any interference in the determination of any issue dependent upon the facts of the case. After a most careful, though not an absolutely exhaustive, examination of Georgia cases I am unáble to find one where a judge ever attempted of his own motion to erase a verdict regularly returned in proper form by a jury upon the only issue submitted, and directed a reconsideration of the case by the jury. There are numbers of eases where the jury adopted the wrong form for the verdict, but where their intention was manifest, and the judge, after inquiring of their intention, very properly ordered the verdict corrected in accordance with the wishes of the jury. However, in a criminal case there is but one issue, the guilt or innocence of the accused of the offense with which he is charged. There is nothing in the question of the Court of Appeals to indicate that the jury had been, tampered with, or that the evidence was such as demanded a verdict of guilty, or any other reason suggested by the question which called for intervention of the court in order that justice might not he defeated, so as to permit him to poll the jury. I know of no more effective way in which the judge’s opinion of the evidence in a criminal case can be intimated than to permit the judge upon his own motion, upon the return of a verdict so regular in form that it can not mean but one thing (either guilty or not guilty), to cause the jury to be polled. That the judge should assume the right of a party in the cause to thus inquire into the verdict ap*169prises every juror of the fact that the judge is not satisfied with their verdict. It matters not what he may say or leave unsaid. Every juror of ordinary intelligence knows that juries are polled by the defendant in a criminal case, or by either party in a civil case only by the dissatisfied party. The order of the court to poll the jury upon the court’s own motion is not only an intimation that the judge is dissatisfied, but there is so strong an implication of his dissatisfaction that it amounts almost to an expression of that opinion. It may be said that no juror would change his opinion by reason of the poll or because the judge ordered the polling of the jury; but this argument can not be supported, for it has sometimes, even if infrequently, happened that upon a poll of the jury demanded by one of the parties it has been discovered that the jury was not unanimous. ’ Whether in fact a jury may be influenced by the intimation of the judge’s opinion to which I have referred, such at least is the theory of our law; for it could just as well be said that it was useless to pass the “dumb act” and prohibit the judge from intimating an opinion upon the evidence, because the jurors would not be influenced by any such intimation after they had been sworn to try the case according to their „ opinion of the evidence and had been charged that they were the exclusive judges of the testimony. If a judge can in any case in effect reform a verdict “returned and published,” so as to transform a first verdict of not guilty, upon reconsideration of the jury upon being polled, into a verdict of guilty, the judge can in another instance, according to his sense of justice, by polling the jury, with the result that even one man, through fear that he has erred because his judgment is contrary to that of the court, and therefore may now disagree, can transform a verdict of guilty into one of not guilty. I am not saying now that justice in criminal eases might not be as well attained by such indirect direction of verdicts by the judge as by submitting the facts to the jury; but what I do say is that under the Georgia system of jurisprudence verdicts, whether right or wrong, are to be returned by the jury and not by the courts, and that any interference with the prerogative of the jury, anything which tends to hamper their absolute independence of action, any respect for the high character and learning of the judge which may tend to Overawe or abash or change the opinion of a single juror, is viola*170tive of the spirit as well as the letter of our law. None of the decisions cited in the opinion of the majority in any way support the proposition that the judge has the right to poll a jury. In the little larceny case in the Glamorganshire district court in England, decided in 1853, a verdict of not'guilty was corrected of his own motion by one of the jurors, and the court thereupon had the judgment correctly entered by the clerk. The judge did not undertake to poll the jury; the jurors themselves called the attention of the court to the fact that the clerk had entered the verdict differently from the way in which it was announced by the foreman, or that the foreman had given the verdict incorrectly to the clerk, and thereupon, upon the complaint of the jurors upon their own motion, the verdict was correctly entered. From the report of this case,"as set out in the opinion of the majority, it appears that in England such mistakes are likely to occur because the jury are not trusted to write their own verdicts. In this State I am happy to be able to say that the jurors write their own verdicts, and though occasionally they must be corrected, no correction cau be made that is not' within the line of the finding that is announced when the verdict is received and, published. In the Florida case to which reference is made there is no reference whatever to any right of the court to poll a jury. The jury in that case was not polled. It was not held that the judge has the right to poll the jury at any time or under any circumstances. The first headnote in the case of Grant v. State, as set forth in 23 L. R. A. 723, is: “Before a verdict returned by a jury in cases of felony is complete it must be accepted by the court for record. At any time after the verdict is'returned into the court, and before it is accepted by the court for record, the accused has the right to have the jury polled in order to ascertain if the verdict offered is unanimous, and in the absence of a polling of the jury any member thereof has the right sua sponte to recede from the verdict agreed upon at any time before it is accepted for record.” The court in that case did not attempt to poll the jury, but he merely held that the verdict first returned-was not in such form as that the court could receive it. That is all there is upon that point of the case. This would be good practice in Georgia. If in the present case, assuming that the defendant was accused of burglary, the jury had returned a verdict of guilty of receiv*171ing stolen goods, the court would necessarily have had to return the case to the jury for further consideration and a verdict of guilty or. not guilty of burglary, because the offense of receiving stolen goods would not have been any more authorized under an indictment for burglary than would a verdict finding the accused guilty of carrying a pistol concealed. But in the case at bar, as stated in the question of the Court of Appeals, the verdict “received and published” was a verdict of .not guilty. There could be no misunderstanding of the meaning of that verdict. It was within the issues submitted to the jury, — an issue which could only be determined in one of two ways, by a finding of guilty or not guilty. So I can not concur in the statement in the opinion of the majority that “another case in which the question was elaborately considered was Grant v. State, 33 Fla. 291” (supra). In Cooper’s case, 103 Ga. 63, 65, cited by the majority of the court, the question whether a judge on his own motion can poll a jury is not even referred to. In support of the ruling that a judge can poll a jury the majority cite the cases, of Cook v. State, 26 Ga. 593, and Mangham v. State, 87 Ga. 549, 552. In neither of these cases is there any reference to the right of the court to poll a jury. In the Coolc case, in which the defendant was charged with concealing and employing a negro to the injury of the owner, the verdict as first returned was in these words:, “We, the jury, find the defendant. guilty of concealing and employing.” The solicitor-general moved to amend this verdict by adding to it the words “the negro to the injury of the owner.”' “The court, on the jurors all answering that this was what they, intended, allowed the amendment to be made.” This court held (headnote 5): “The court may require an incomplete .verdict to be made complete, before receiving it.” It is plain to my mind that the ruling of this court in that ease will not support the right of a judge to poll a jury. Nor will it support the right of the court to amend a verdict of not guilty into a verdict of guilty, whether directly or indirectly. The verdict to which the question of the Court of Appeals relates is not “an incomplete verdict.” It can ••n.ot- be made more complete than its statement. The right of the 'court to perfect a verdict in accordance with the intention of the ' jury is well recognized, but it can not be exercised except to perfect the verdict as returned. This power can not be used to ef*172feet the substitution of an entirely different verdict from that bespoken by the jury at the time their verdict was “received and published.” To show the view of this court in the Oooh case, supra, Mr. Justice Benning, delivering the opinion of the court, says nothing more than this in the fifth division of the opinion. “We see nothing wrong here. If the verdict was not full when returned, it was the duty of the court not to receive it, but to require it to be made full. And the court here did no more than this. The amending was, really, the act of the jury, not of the court. Indeed, we incline to think that all that ivas expressed in the verdict after the amendment was implied in it before the amendment.” In Mangham v. State, supra, the trial judge was affirmed for refusing to receive a verdict of guilty of receiving stolen goods, and in directing the jury that they would have to find a verdict of guilty or not guilty; but the judge did not attempt to poll the jury. The case is not in point, because the court was there dealing only with the question whether the verdict of the jury first returned, and which found the defendant guilty of receiving stolen goods, could be had under an indictment upon which the accused was being tried. This court, very properly I think, held that the defendant could not be convicted of receiving stolen goods under the indictment before the court, any more than he could have been convicted of digging ginseng untimely; and for that reason the court very properly returned the jury to their room to make a decision of some kind (without any intimation of any kind upon the part of the court)' confined to the issue raised upon the plea to the particular indictment. In the case to which the question of the Court of Appeals relates there was a conclusive finding in the verdict set aside by the court, upon the only issue involved in the indictment and before the court.