Hubbard v. State

63 S.E. 588, 5 Ga. App. 599, 1909 Ga. App. LEXIS 74

• Court: Court of Appeals of Georgia
• Decided: February 9, 1909
• Docket: 1536
• Status: Published

Opinion

Russell, J.

Among other grounds in his motion, the plaintiff in error asked a new trial upon the ground that T. H. Brown, one of the jurors who rendered the verdict finding him guilty, was. related by affinity in the third degree to George T. Cleveland, the prosecutor, which made him incompetent as a juror. In support of this ground of the motion, affidavits were presented, showing that the defendant and his counsel were wholly ignorant, until after the trial, that there was any relationship between the prosecutor and the juror. The affidavit of H. S. Sanders as to the relationship was not disputed by any counter-showing. Sanders’ affidavit showed that one Elias Sanders was the great-grandfather of the prosecutor, and also of Mrs. Leila Brown, who was the juror’s wife. The prosecutor and the juror were, therefore, third cousins, by marriage. This evidence, that they were thus related within the ninth degree, being undisputed, the verdict finding the defendant guilty was not a legal verdict, and should have been set aside.. The ease is controlled by the decision of this court in Smith v. State, 2 Ga. App. 574 (59 S. E. 311). Although the evidence in behalf of the State in this case authorized the verdict of guilty,, a new trial should have been granted. As we ruled in the Smith case, a new trial is demanded where there is no doubt as to the disqualification of a juror, and where such disqualification is not waived by knowledge of that fact; for the reason that the verdict, is illegal and void. To this effect is the ruling in Georgia R. Co. v. Cole, 73 Ga. 713. Judgment reversed.