Cray v. State

140 S.E. 402, 37 Ga. App. 371, 1927 Ga. App. LEXIS 686

• Court: Court of Appeals of Georgia
• Decided: November 16, 1927
• Docket: 18361
• Status: Published

Opinion

Bloodworth, J.

1. “A juror in a criminal' case who is

related, by blood or marriage, within the ninth degree -to the prosecutor, ascertained according to the rules of the civil law, is a disqualified juror;, and such disqualification of a juror, unknown to the defendant or his counsel until after verdict, or which could not have been ascertained by either of them before verdict by the exercise of due diligence, is cause for a new trial. Crawley v. State, 151 Ga. 818 (108 S. E. 238, 18 A. L. R. 368); Merritt V. State, 152 Ga. 203 (110 S. E. 160).” O’Berry v. State, 153 Ga. 644 (113 S. E. 2).

2. Citing authority to support ■ his contention, counsel for the State insists that the judgment in this case should be affirmed, because there are no- affidavits supporting, the witnesses who swore to the relationship of the prosecutor to the jurors. In Davis v. State, 150 Ga. 19 (102 S. E. 445), it was held: “The word ‘witnesses/ as employed in the last paragraph of § 6086 of the Civil Code (1910), refers to witnesses whose evidence is to be used on the merits of a case if a new trial is had. But where a new trial is asked or granted on account of newly discovered evidence showing relationship within the prohibited degrees of a juror who sat in the case, and the prosecutor, the fact of relationship does not have to be proved on the second trial, and therefore the provisions of the above section of the code as to ‘supporting affidavits’ do not apply.” Under this ruling, “supporting affidavits” are not necessary in such cases as the instant one; and the ruling to the contrary in Tyre v. State, 35 Ga. App. 579 (134 S. E. 178), must yield to the ruling in the Davis case, supra.

Judgment reversed.

Broyles, G. J., and Buhe, J., concur.