Meyers v. Clark

112 S.E.2d 300, 100 Ga. App. 845, 1959 Ga. App. LEXIS 745

Opinions

Quillian, Judge.

1. Failure of a bailiff to take the oath prescribed in Code § 59-717, relating to oaths of bailiffs taking charge of juries, is ground for the grant of a new trial. Roberts v. State, 72 Ga. 673 (2); Washington v. State, 138 Ga. 370 (4) (75 S. E. 253); Jackson v. State, 152 Ga. 210 (3) (108 S. E. 784); Hannah v. State, 212 Ga. 313 (92 S. E. 2d 89).

Decided December 16, 1959. Brannen, Clark ■& Hester, H. Sol Clark, for plaintiffs in error. Myrick, Myrick ■& Richardson, contra.

2. Examination of the records of each of the above cases in the files of the Supreme Court discloses that in the first three cases cited the grounds of the motions for a new trial which c.omplained of failure, to swear the bailiff in each case did not contain any averments showing that such failure was unknown to the movant or to his counsel prior to1 the rendition of the verdict. Accordingly, we are constrained to hold that the well presented contention of defendant’s counsel that special ground 1 is incomplete for failure to contain such averments is without merit.

3. Under the above authorities the court did' not err in granting a new trial for failure to swear the bailiff who had charge of the jury during its deliberations. Other matters of unauthorized communication with the jury also complained of are npt likely to recur on a new trial of the cause, and need not be considered.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.