
    23837.
    Morris v. The State.
    Decided April 20, 1934.
   Broyles, C. J.

This defendant was jointly indicted with Cleveland Burke for the offense of an attempt to commit sodomy. Burke was first tried and convicted, and the verdict of the jury was written on the back of the indictment. Upon the subsequent trial of this defendant, his counsel, before the indictment was handed to the jury and before they had retired to the jury room, made an oral motion, addressed to the judge, that he have a piece of paper pasted over the verdict rendered against Cleveland Burke before the indictment was given to the jury. The motion was overruled by the court, and the indictment, with the aforesaid verdict unconcealed thereon, was given to the jury and remained with them during their consideration of this case. Meld: On account of this prejudicial paper having gone to the jury, over the timely objection of the defendant, the accused did not have a fair trial such as the law requires, and the court erred in refusing to grant a new trial. Waters v. State, 25 Ga. App. 577 (103 S. E. 835), and cit. The cases of Crawford v. State, 4 Ga. App. 789 (62 S. E. 501), and Kincaid v. State, 13 Ga. App. 683 (79 S. E. 770), cited by counsel for the State, are distinguished by their facts from this case.

Judgment reversed.

MacIntyre, J., concurs. Guerry, J., dissents.

Hallie B. Bell, for plaintiff in .error.

John 7. Roberts, solicitor, contra.  