Gainer v. State

142 Ga. App. 871 (1977)

237 S.E.2d 235

GAINER v. THE STATE.

54061.

Court of Appeals of Georgia.

Submitted May 23, 1977.

Decided July 14, 1977.

Wingate, Bartlett & Baynard, Robert E. Baynard, for appellant.

William S. Lee, District Attorney, Loring A. Gray, Jr., Assistant District Attorney, for appellee.

BELL, Chief Judge.

Defendant was convicted of possessing marijuana and sentenced. His motion for new trial was denied. Held:

1. There was evidence which showed that defendant *872 was observed by a policeman standing behind a makeshift counter in a pool hall with his foot under the counter. He hesitated in moving his foot away from the counter. When he did a triangular piece of red plastic was noted sticking up through a crack in the flooring. Lifting a loose board the policeman found a red pastic package containing nine small bags of marijuana. This evidence authorized the conviction and it was not error to deny defendant's motion for directed verdict of acquittal.

2. It is not error for the trial court to fail to charge that a jury verdict must be unanimous in the absence of a written request. Porter v. State, 141 Ga. App. 602 (234 SE2d 100).

3. The jury's verdict as published was: "We, the jury, find the defendant..." The defendant did not poll the jury as was his right. See Shouse v. State, 231 Ga. 716 (203 SE2d 537). One of the grounds of the motion for new trial was that there was no legal verdict in that one juror did not vote guilty. At the hearing on the motion for new trial, one of the jurors testified that she had not voted for conviction. A juror may not impeach his verdict by a post trial affidavit. Code § 110-109. While here the testimony of a juror at the hearing was used to impeach the verdict, the rule against impeachment of verdict by post trial sworn statements still applies.

Judgment affirmed. McMurray and Smith, JJ., concur.