Sheffield v. Sheffield

104 S.E. 213, 150 Ga. 440, 1920 Ga. LEXIS 196

• Court: Supreme Court of Georgia
• Decided: September 16, 1920
• Docket: No. 1745
• Status: Published

Opinion

Beck, P. J.

1. The first ground of the amendment to the motion for a new trial assigns error upon the refusal of the court to grant the motion of counsel for plaintiffs in error, that each of the jurors called in the case be separately sworn as to their competency or incompetency, partiality or impartiality, and that the members of the panel be separately put upon their voir dire. When this motion was submitted, the court declined to have each of the jurors separately- sworn and examined, but instead the court propounded to all the panel of twenty-four jurors the following questions: (1) "Have you any prejudice or bias on your minds either for or against either of the parties to this case?” (2) "Is your mind perfectly impartial between the parties to this case, the plaintiff and defendants; if not stand up?” (3) "Or, if you haVe any desire or preference 'as to which party should prevail, the plaintiff or defendants; if so stand up.”

In the brief of counsel it is argued that as the defendants (the plaintiffs in error) requested that the jurors be first sworn and then examined' as to qualification, and as the court did not first swear any of the jurors as to their competency but proceeded to ask all the jurors collectively the questions above quoted, this was error. If by this argument it is meant that the court erred in not swearing the jurors that they should true answers make to the questions propounded when they were put upon their voir dire, it may be observed that no exception of this kind was taken in the ground of the motion under consideration, nor in any of the other grounds of the motion for a new trial; and the argument in the brief, that the court should have permitted counsel for the litigant making the motion to first have the jurors sworn “true answers to make to such questions as may be propounded to you by the court or its authority, touching your competency to try the case at bar,” is beside the question. The only objection urged in the motion for a new trial itself is that indicated above,— the administering of the voir dire questions to the entire panel. This question has already been settled. “ ‘In hi civil cause it is good cause of challenge that a juror has expressed an opinion as to which party ought to prevail, or that he has a wish or desire as to which should succeed.’ Penal Code (1910), § 859. A party may avail himself of this cause of challenge by motion to put the jurors on their voir dire. In such cáse the court may propound the questions indicated in the code section to each juror, or he may propound them to the entire panel, adopting such plan as will assure a response to each question from each individual juror. This is accomplished when the judge, after propounding the questions, directs that any juror answering both or either questions in the affirmative shall stand up. A preliminary oath should be administered to the jurors before propounding the questions; but if this is inadvertently omitted and the attention of the court is not called thereto, it is too late áfter verdict to make this objection for the first time.” Hilton & Bodge Lumber Co. v. Ingram, 135 Ga. 696 (70 S. E. 234).

2. In the second ground of the amended motion for a new trial is contained an exception upon the refusal of the court to sustain a motion made by the counsel for defendants to sequester tlie witnesses. Counsel moved and requested the court to place the witnesses for the plaintiff under the rule. As appears from the. note made by the court, “ H. F. Sheffield was permitted to remain in court, as being familiar with the case, the administrator not being.” The witness named was one of the heirs of the estate of which the defendant, J. W. Sheffield, was administrator; and it appears from the note of the judge that on account of his familiarity with the facts of the case he was permitted to remain in court, and was examined as a witness. While it would have- been more in accordance with the spirit of the rule to have excluded H. F. Sheffield, at any rate, until after he had testified, nevertheless the refusal of the court to sequester the witness was not such an abuse of discretion as requires the grant of a new trial.

3-6. The rulings made in headnotes 3 to 6, inclusive, require no elaboration. And the grounds of the motion for a new trial not covered by the foregoing rulings show no cause for the grant of a new trial.

Judgment affirmed.

All the Justices concur.