McCurry v. City of Rome

Wade, J. There is no merit in the contention that the conviction is not supported, by evidence; and as to the remaining question in the case the facts are identical with those in Smith v. City of Rome, 16 Ga. App. 161 (84 S. E. 615), in which it was held: “Where, on a trial by the mayor and council on appeal, in the case of one who had been convicted by the recorder of the city of the charge of having violated a municipal ordinance, the evidence and the defendant’s statement had been received and the hearing of the ease concluded, it was not error to exclude the accused from the court-room during the deliberations of the mayor and council as to the judgment to be rendered. Nor is it sufficient ground for a new trial that the city’s attorney, who had conducted the prosecution, and the chief of police, who had aided and advised him in the conduct of the trial, were allowed to remain in the court-room while the accused was excluded, it appearing that neither of these officers took part in the deliberations of the mayor and council, though the chief of police, at their request, informed them as to the amount of the fine imposed in the recorder’s court. If this communication, or the presence of these officers, in the absence of the accused, was an irregularity, it does not appear that it resulted in harm to him. The right of the accused to be present at his trial does not include the right to be admitted to the consultations of the members of the court with each other while they are deliberating as to the judgment to be rendered. The mayor and council were sitting as a court, and not as a jury (Flannigan v. City of Rome, 10 Ga. App. 217, 72 S. E. 1099); and the case is not governed by decisions awarding a [148] new trial on account of communication between jurors and others during the deliberations of the jury.” The law has never subjected courts or judges to such requirements as those which forbid or restrict communication between jurors and others during the trial or consideration of cases; and, though communication between a judge and counsel or a party, not in the presence of the opposite party or his counsel, in regard to a case under consideration by the court, may be matter for criticism, or in some instances highly improper, it is incumbent upon a party by whom a judgment is attacked for alleged impropriety or unfairness in this respect to show that the conduct complained of was harmful to him. This is so without regard to whether the court was a municipal court or a higher tribunal, and although the judgment was a finding of fact, and the court in rendering it was therefore exercising a function like that of a jury. . . ' Certainly it can not be held that the mere presence of the city attorney or of the chief of police in the council chamber, even though the accused was absent, was prejudicial to him. And it is not apparent that the accused was harmed, or could have been harmed, by the question and answer as to the amount of the fine imposed on him on the former trial of the case. Judgment affirmed.