Atkinson, J.
We will deal at once with the 4th ground of the motion for new trial. It is expressly stated in the motion for new trial that the jurors read the paper which contained the editorial complained of. The judge certified the recital of facts to be true. It is thus made affirmatively to appear that the jurors read the paper. It is nowhere stated in so many words that they read the editorial, but there is no explanation by the jurors nor any counter-showing. It was in the paper and, as we shall see, was of harmful character, and in the absence of a denial it will be presumed that the jurors read it. See, in this connnection, Thompson & Merriam on Juries, §395, and cit. The judge no doubt intended to certify that the jurors read the editorial. Had that not been the intention, he could simply have certified that the jurors did not read the editorial, and would thereby have avoided the question which counsel have argued and which we are called upon to decide. In the absence of denial, we will presume, from the recitals in the motion and the judge’s certificate, that the editorial was in fact read by the jurors. This leads to the inquiry as to whether the fact of reading the article was misconduct upon the part of the jurors, and, if so, whether it was of such character as to require a reversal of the judgment refusing a new trial.
An examination of the editorial will show clearly that it is argumentative in favor of convictions in capital eases such as the one on trial. Either a casual or a most scrutinous reading of the article will lead to that conclusion, and to none other. It was not only argumentative, but almost of coercive character, in that it criticised juries for failure to convict. The charge inferen[428]*428tially made was that the conditions in this country were such that jurors would not convict in murder cases “even where the evidence of guilt was overwhelming.” It was stated that the remedy needed was a “stirring of the consciences of the people.” What effect this appeal actually had upon the minds of the jurors it is impossible to say. That it was an irregularity follows from the fact that the article was read by the jurors after they had qualified, without the knowledge or consent of the court or of the defendant or his counsel. It was read after the jurors had been put upon their voir dire. Whether, after reading the article, the jurors would again have said that their minds were perfectly impartial between the State and the accused, or that there was no bias or ¡prejudice resting upon their minds, either for or against the accused, we have no means of knowing. Those questions were not again put to the jurors. It is possible that the minds of the jurors may have been so influenced by the article as to render them unable to answer the statutory questions in such way as to leave them competent to try the accused. Again, treating the article as an address to the jurors, it would be improper for at least two reasons: first, because it was made by one not authorized to participate in the trial in an advisory or any other way; second, because it was made without the knowledge or consent of the defendant or his counsel, and there was no opportunity to reply. The possible harm to the defendant that could result from an editorial is incalculable. It was well said by Wood, J., in Cartwright v. State, 11 Miss. 82, 14 So. 526, that “this method of communicating to and impressing upon the jury, or any member of it, the opinion of others, is open to the same condemnation which would be visited upon oral expressions of opinion touching a defendant, injected into the body of the jury by some designing intermeddler. The widely-read and influential daily journal, speaking for, as well as to, the public, reflecting popular sentiment, as well as making it, must be held to be much more powerful in influencing the average man than any expression of opinion by a single, private individual.”
It is insisted that the defendant could not have been injured, because the article did not make reference to the particular case on trial. The fact that the case is not specially named does not necessarily deprive the argument for convictions, as contained in [429]*429the editorial, of its injurious effect. The argument made no exceptions and was addressed to all prosecutions in murder cases, which in general terms embraced the case under consideration. The subject of the editorial was of the same class as the subject of the case on trial. The editorial was apparently from a disinterested source, and for that reason may have produced an effect even more harmful to the defendant than if the case had been specially named; for in the latter case the jury might at least have attributed to the writer the interest of a partisan. The whole tendency of the editorial was to play upon the passions and emotions of those who read it, and to encourage juries to convict in capital cases. An appeal of that character, whether made by a writer, an orator from the pulpit, or an actor upon the stage, may be made with such effect as to influence the mind while acting upon any particular matter, without direct reference thereto. When a juror enters upon the trial of a criminal case, the law contemplates his withdrawal from the public and makes no provision for addresses to him from outside sources, for his entertainment or otherwise, which are calculated, -directly or indirectly, to excite any passions or emotions with respect to the matter upon which he is to sit in judgment. Perfect impartiality in the juror is the object of the law. Anything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced. Whether beneficial to the State or to the accused, such things, upon the ground of irrelevancy, should be suppressed and not given the opportunity of influencing the minds or exciting the passions of the jurors. Verdicts should be the result of calm deliberation, founded upon the law and evidence. The accomplishment of that object can never be assured where irrelevant things which tend to destroy the impartiality of the jurors are allowed to creep into the trial.
We know of only three cases which have been before this court where it was argued that a new trial should have been granted upon the ground that the jurors, after having been impaneled, had been permitted to read newspapers. Fogarty v. State, 80 Ga. 450; Flanegan v. State, 64 Ga. 52; Hunter v. State, 43 Ga. 483 (6). In the two cases first mentioned this court declined to interfere with the discretion of the trial court in refusing to grant a new trial, because it was not shown that any harm had resulted to the [430]*430defendant by the reading of the newspaper. In the Fogarty case the opinion recites that “the record discloses that the copies of the paper which the jurors were reading contained nothing about the case except the fact that the case was on trial.” It was not made to appear in either of those'cases, other than as just stated with reference to Fogarty’s case, what the paper contained, and therefore it was not affirmatively shown by the movant, upon whom the burden rested to show error, that anything appeared in the paper which it was improper for the jury to see. Those cases were different from the case under consideration in that respect, because in the present case it was affirmatively shown what the paper contained, and that the article in question was of such character as tended to render the jurors incompetent to serve in the case.
Free access — add to your briefcase to read the full text and ask questions with AI
Atkinson, J.
We will deal at once with the 4th ground of the motion for new trial. It is expressly stated in the motion for new trial that the jurors read the paper which contained the editorial complained of. The judge certified the recital of facts to be true. It is thus made affirmatively to appear that the jurors read the paper. It is nowhere stated in so many words that they read the editorial, but there is no explanation by the jurors nor any counter-showing. It was in the paper and, as we shall see, was of harmful character, and in the absence of a denial it will be presumed that the jurors read it. See, in this connnection, Thompson & Merriam on Juries, §395, and cit. The judge no doubt intended to certify that the jurors read the editorial. Had that not been the intention, he could simply have certified that the jurors did not read the editorial, and would thereby have avoided the question which counsel have argued and which we are called upon to decide. In the absence of denial, we will presume, from the recitals in the motion and the judge’s certificate, that the editorial was in fact read by the jurors. This leads to the inquiry as to whether the fact of reading the article was misconduct upon the part of the jurors, and, if so, whether it was of such character as to require a reversal of the judgment refusing a new trial.
An examination of the editorial will show clearly that it is argumentative in favor of convictions in capital eases such as the one on trial. Either a casual or a most scrutinous reading of the article will lead to that conclusion, and to none other. It was not only argumentative, but almost of coercive character, in that it criticised juries for failure to convict. The charge inferen[428]*428tially made was that the conditions in this country were such that jurors would not convict in murder cases “even where the evidence of guilt was overwhelming.” It was stated that the remedy needed was a “stirring of the consciences of the people.” What effect this appeal actually had upon the minds of the jurors it is impossible to say. That it was an irregularity follows from the fact that the article was read by the jurors after they had qualified, without the knowledge or consent of the court or of the defendant or his counsel. It was read after the jurors had been put upon their voir dire. Whether, after reading the article, the jurors would again have said that their minds were perfectly impartial between the State and the accused, or that there was no bias or ¡prejudice resting upon their minds, either for or against the accused, we have no means of knowing. Those questions were not again put to the jurors. It is possible that the minds of the jurors may have been so influenced by the article as to render them unable to answer the statutory questions in such way as to leave them competent to try the accused. Again, treating the article as an address to the jurors, it would be improper for at least two reasons: first, because it was made by one not authorized to participate in the trial in an advisory or any other way; second, because it was made without the knowledge or consent of the defendant or his counsel, and there was no opportunity to reply. The possible harm to the defendant that could result from an editorial is incalculable. It was well said by Wood, J., in Cartwright v. State, 11 Miss. 82, 14 So. 526, that “this method of communicating to and impressing upon the jury, or any member of it, the opinion of others, is open to the same condemnation which would be visited upon oral expressions of opinion touching a defendant, injected into the body of the jury by some designing intermeddler. The widely-read and influential daily journal, speaking for, as well as to, the public, reflecting popular sentiment, as well as making it, must be held to be much more powerful in influencing the average man than any expression of opinion by a single, private individual.”
It is insisted that the defendant could not have been injured, because the article did not make reference to the particular case on trial. The fact that the case is not specially named does not necessarily deprive the argument for convictions, as contained in [429]*429the editorial, of its injurious effect. The argument made no exceptions and was addressed to all prosecutions in murder cases, which in general terms embraced the case under consideration. The subject of the editorial was of the same class as the subject of the case on trial. The editorial was apparently from a disinterested source, and for that reason may have produced an effect even more harmful to the defendant than if the case had been specially named; for in the latter case the jury might at least have attributed to the writer the interest of a partisan. The whole tendency of the editorial was to play upon the passions and emotions of those who read it, and to encourage juries to convict in capital cases. An appeal of that character, whether made by a writer, an orator from the pulpit, or an actor upon the stage, may be made with such effect as to influence the mind while acting upon any particular matter, without direct reference thereto. When a juror enters upon the trial of a criminal case, the law contemplates his withdrawal from the public and makes no provision for addresses to him from outside sources, for his entertainment or otherwise, which are calculated, -directly or indirectly, to excite any passions or emotions with respect to the matter upon which he is to sit in judgment. Perfect impartiality in the juror is the object of the law. Anything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced. Whether beneficial to the State or to the accused, such things, upon the ground of irrelevancy, should be suppressed and not given the opportunity of influencing the minds or exciting the passions of the jurors. Verdicts should be the result of calm deliberation, founded upon the law and evidence. The accomplishment of that object can never be assured where irrelevant things which tend to destroy the impartiality of the jurors are allowed to creep into the trial.
We know of only three cases which have been before this court where it was argued that a new trial should have been granted upon the ground that the jurors, after having been impaneled, had been permitted to read newspapers. Fogarty v. State, 80 Ga. 450; Flanegan v. State, 64 Ga. 52; Hunter v. State, 43 Ga. 483 (6). In the two cases first mentioned this court declined to interfere with the discretion of the trial court in refusing to grant a new trial, because it was not shown that any harm had resulted to the [430]*430defendant by the reading of the newspaper. In the Fogarty case the opinion recites that “the record discloses that the copies of the paper which the jurors were reading contained nothing about the case except the fact that the case was on trial.” It was not made to appear in either of those'cases, other than as just stated with reference to Fogarty’s case, what the paper contained, and therefore it was not affirmatively shown by the movant, upon whom the burden rested to show error, that anything appeared in the paper which it was improper for the jury to see. Those cases were different from the case under consideration in that respect, because in the present case it was affirmatively shown what the paper contained, and that the article in question was of such character as tended to render the jurors incompetent to serve in the case. In this way it is made affirmatively to appear that harm had been done to the defendant. In the last of the three cases cited (Hunter v. State, 43 Ga. 483), the article contained in the paper was one referring to the Case by name as an important case, and severely criticising counsel for the accused because of certain language employed by counsel in his argument for a change of venue. The paper was read by the jurors in the presence of the court and of counsel for the accused, who, although seeing them reading the paper, made no objection until after the verdict. In dealing with that ground of the motion for new trial, the court, speaking through Chief Justice Lochrane, said: “In relation to a portion of the jury, before the completion of the panel, reading the ‘Quitman Banner/ it appears that this newspaper contained no portion of the testimony, either for or against the prisoner, but contained a diatribe against one of the counsel of the accused for a speech made on a motion to change the venue. It is difficult to draw any line sufficiently well marked to constitute a rule upon this subject, and we can readily appreciate the propriety of keeping the jury, from the moment they are sworn in chief, away from all influences and communications which might, in the most remote degree, influence their verdict; but we are not prepared to say that the reading of a mere newspaper under the circumstances, being known to the counsel of the accused, not excepted to by him, then and there, and transpiring in open court, would constitute a ground of error sufficient to set aside a verdict. On the contrary, we hold that it would not.” It will be observed that the court in that [431]*431case “appreciated the propriety of keeping the jury . . away from all influences and communications which might in the most remote degree influence their verdict,” but placed the ruling refusing to order a new trial mainly upon the proposition that counsel did not move at the proper time. This was in accordance with the rule which is now better recognized, that when a party moves for a new trial on the ground of misconduct of a juror, he must aver and show affirmatively that both he and his counsel were ignorant of the misconduct charged, until after the verdict. Wynn v. City & Suburban Ry., 91 Ga. 344; Cogswell v. State, 49 Ga. 103; 12 Enc. Pl. & Pr. 553, 558. While Hunter’s case, supra, did not.comply with this rule, Styles, the defendant in the present case, did comply by making the affirmative showing.
There are other cases, in which new trials have been ordered upon the ground of misconduct upon the part of the jurors. These cases do not involve the question of the propriety of the jurors .reading newspapers, but the rulings made in them go to the preservation of the purity of jury trials, and the principles announced in them are applicable to the facts in this case. We will deal with some of them. The case of Shaw v. State, 83 Ga. 92, is where the misconduct complained of consisted in the jury attending a prayer-meeting conducted by the prosecutor in the case. Upon arrival the jurors were shown their seats by the prosecutor, separate and apart from the remainder of the congregation. The prosecutor led the services and addressed the congregation. Prayers were offered for the court and its officers, but no reference was made to the particular case on trial. There was shouting at the meeting. In passing upon this case, the following was announced in the headnote: “Where misconduct of a juror or of the jury is shown, the presumption is that the defendant has been injured, and the onus is upon the State to remove such presumption by proper proof. While reviewing courts are loth to interfere with the decision of the trial judge that the presumption has been removed, such decision is in this State subject to review. The misconduct of the jury and of the ■officer in charge of them in this case was of such character as to Tequire a new trial.” In the course of the opinion it ‘was said by Mr. Justice Simmons: “There are many things which can be done by individual members of the jury, or by the whole jury, [432]*432■which are susceptible of such clear explanation that the trial judge would be authorized in refusing to set the verdict aside. There are other things, however, which if done by an individual member of the jury, or by the whole jury, are so contrary to the public policy of the State in the procurement of fair and impartial trials for the citizens of the State, as to require that a verdict rendered by such jury be set aside,, whether the defendant has been injured thereby or not; and in onr opinion, the case under consideration belongs to this class. The State is jealous of the rights and liberties of its. people. When one of its citizens is accused of crime, it throws around him all the safeguards that are possible, in order to procure him a fair and impartial trial. It requires the officer who has charge of the particular jury to swear, in substance, in open court, to take them to the jury room and there keep them safely, and not to communicate with them himself or suffer any one else to-communicate with them, unless by leave of the court. The law contemplates that when a jury are selected and sworn to try a citizen for felony, they shall be entirely separated from the world, and that no communication whatever shall be had with them from the beginning of the trial until the verdict is reached, unless by leave of the court. It contemplates that no outside influence shall be brought to bear on the minds of the jury, and that nothing shall occur outside of the trial which shall disturb their minds in any way; that the minds of the jury shall be entirely occupied with the consideration of the case which they are sworn to try.”' The ease of Smith v. State, 122 Ga. 154, presents another instance where the judgment of the lower court was reversed because it refused to grant a new trial upon the ground of misconduct upon the part of the jurors. It is unnecessary here to make further reference to the misconduct complained of. In this case it was said: "This court, from the time of its organization to the present time, has striven to protect the purity and impartiality of' jury trials, and wherever there have been irregularities, unless fully explained and the court satisfied that the accused has not been injured, new trials have been granted. Where the misconduct of the "officers and jury has been gross, this court and others have held that a new trial should be granted on account of public policy, whether the accused was injured or not.” The case of [433]*433Obear v. Gray, 68 Ga. 182, presents another instance where a new trial was granted because the court refused to set aside a verdict because of improper conduct of the jurors. In this case, Mr. Justice Crawford, speaking for the court, said: “But other and quite as serious complaints are made in reference to allowing the jury to be carried to the public park, a place of great resort, especially on Sundays, and allowing them whilst there to pass about and to separate for some considerable time. Every jury is to be carried to the jury room, or some other private and convenient place, where they are not to be spoken to by the officer having them in charge or others, unless by leave of the court. To take them, therefore, to a park, which is said to. be a place of great public resort, especially on the Sabbath day, where they are almost sure to hear something said about the case, whether they would or not, is most clearly a violation of the spirit and purpose of the law in withdrawing them from the body of their fellow citizens until they have agreed upon their verdict. We think that this was a good ground upon which to set aside the verdict, unless it was clearly shown that no such things occurred while they' were in the presence and hearing of other visitors. It is true that the affidavits offered show everything necessary to purge them, except that it does not appear but that they heard bystanders make remarks about the case. To make the purgation complete, this should affirmatively appear. 37 Ga. 332; 38 Ib. 216; 56 Ib. 653.” We do not deem it necessary to make further reference to any of the cases cited in the several cases to which we have alluded.
Under the view we take of the case the editorial complained of dealt with a subject so related to the case on trial as to make its references applicable to that case; and, because of its argumentative character and its tendency, through appeals to the emotions and passions of jurors, to displace the element of impartiality in the minds of the jurors, it was harmful to the accused, in that it tended to deprive him of a fair and impartial trial. He brought himself under the rule by making complaint in the manner and at the time authorized by law, and the judge should have granted a new trial. As the case must go back for another trial, we will not deal with the assignments of error which relate to the general grounds of the motion.
Judgment reversed.
All the Justices concur.