O.C.G.A.
O.C.G.A.

O.C.G.A. § 17-9-40 (2019)

Amendment of verdict after dispersion of jury

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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A verdict may be amended in mere matter of form after the jury have dispersed; but, after it has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.

History

Orig. Code 1863, § 3422; Code 1868, § 3442; Code 1873, § 3492; Code 1882, § 3492; Civil Code 1895, § 5111; Civil Code 1910, § 5695; Code 1933, § 110-111.

Annotations

Cross references. - Corresponding provision relating to civil procedure, § 9-12-7.

JUDICIAL DECISIONS Verdicts in criminal cases may be reformed in presence of jury and even after jury has dispersed. Dansby v. State, 165 Ga. App. 41, 299 S.E.2d 579 (1983). Return after dispersal of verdict which is too uncertain. - When by consent the jury in a criminal case disperses after agreeing upon the jury’s finding, and thereafter return into court a verdict which is too uncertain or indefinite to support a judgment, it is beyond the power of the court to order this verdict to be so amended as to cure the defects therein. Any action by the court in attempting to thus amend such a verdict should be treated as a mere nullity. Wells v. State, 116 Ga. 87, 42 S.E. 390 (1902). Conforming verdict to language of Code section charged. - When the jury returned a verdict of ‘‘involuntary manslaughter,’’ without specification, the trial court does no more than conform the ver-

dict to the pleadings and the evidence when the court asks the foreperson to conform the verdict to the language of O.C.G.A. § 16-5-3(a), unlawful act-involuntary manslaughter, when there is no evidence of lawful act-unlawful manner involuntary manslaughter. Brown v. State, 166 Ga. App. 765, 305 S.E.2d 386 (1983). Amendment of guilty verdict to guilty but mentally ill not permitted. - Since the jury was instructed on possible verdicts of guilty and guilty but mentally ill and returned a verdict of guilty, amendment of the verdict from guilty to guilty but mentally ill would constitute an impermissible substantive change. Hollis v. State, 215 Ga. App. 35, 450 S.E.2d 247 (1994). No amendment of guilty but mentally ill verdict. - Trial court erred in permitting the jury to consider a verdict of guilty but mentally ill on a misdemeanor

count of making harassing telephone calls as that verdict is available only in felony cases. Converting, on appeal, the verdict to guilty would have constituted an impermissible substantive change in the verdict, violative of O.C.G.A. § 17-9-40, and therefore the verdict had to be reversed. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996). Juror’s affidavit should not have been considered to impeach a verdict. - Habeas court erred in setting aside a murder conviction based on claims

that counsel was ineffective in failing to challenge an alternate juror, who was seated after the juror had been excused and had researched the case on the Internet, because the juror’s affidavit should not have been considered to impeach the verdict, pursuant to O.C.G.A. § 17-9-40, and the research was not the type of conduct that deprived the petitioner of a fair trial. O’Donnell v. Smith, 294 Ga. 307, 751 S.E.2d 324 (2013). Cited in Rolle v. State, 177 Ga. App. 79, 338 S.E.2d 519 (1985).

RESEARCH REFERENCES C.J.S. - 89 C.J.S., Trial, §§ 1074 et seq., 1166 et seq. ALR. - Power of court to mold or amend verdict with respect to the parties for or against whom it was rendered, 106 A.L.R. 418. Entry of final judgment after disagreement of jury, 31 A.L.R.2d 885. Court’s power to increase amount of verdict or judgment over either party’s refusal or failure to consent to addition, 56 A.L.R.2d 213. Competency of juror’s statement or affidavit to show that verdict in a civil case

was not correctly recorded, 18 A.L.R.3d 1132. Jury’s discussion of parole law as ground for reversal or new trial, 21 A.L.R.4th 420. Propriety and effect of jurors’ discussion of evidence among themselves before final submission of criminal case, 21 A.L.R.4th 444. Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated, 14 A.L.R.5th 89.

Notes of Decisions
Cited in 15 cases (2 in the last 5 years), 1983–2024 · leading case: Booth v. State, 858 S.E.2d 39 (Ga. 2021).
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Booth v. State, 858 S.E.2d 39 (Ga. 2021). · cites it 12× “Booth argues that the trial court could not send the jury back to continue its deliberations in this case, however, because the initial verdicts became final under OCGA § 17-9-40 once the jury had been discharged.”
Murphy v. State, 787 S.E.2d 721 (Ga. 2016). · cites it 2× “See OCGA § 17-9-40 (“after [the jury’s verdict] has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise”); former OCGA § 17-9-41 (“The affidavits of jurors may be taken to…”
Levin v. State, 473 S.E.2d 582 (Ga. Ct. App. 1996). · cites it 2× “Converting the verdict to guilty, as the State proposes, would constitute an impermissible substantive change in the verdict violative of OCGA § 17-9-40. See Hollis v. State, 215 Ga.”
O'Donnell v. Smith, 751 S.E.2d 324 (Ga. 2013). · cites it 2× “”); OCGA § 17-9-40 (“after [the jury’s verdict] has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.”
Hollis v. State, 450 S.E.2d 247 (Ga. Ct. App. 1994). · cites it 4× “” He theorized that “guilty but mentally ill” is not a substantive change in the verdict but merely a change in form which would correctly address his situation.”
Washington v. State, 792 S.E.2d 479 (Ga. Ct. App. 2016). · cites it 6× “” OCGA § 17-9-40. In such a circumstance, “a defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict [.”
Dansby v. State, 299 S.E.2d 579 (Ga. Ct. App. 1983). · cites it 2× “See, respectively, OCGA §§ 17-9-40 and 9-12-7. We therefore apply the principle here and consequently reject defendant’s contention.”
Jones v. State, 523 S.E.2d 73 (Ga. Ct. App. 1999). · cites it 2× “Although the jury verdict stated Jones was guilty of aggravated child molestation, the trial court conformed the verdict to the pleadings and the evidence (see OCGA § 17-9-40), and Jones was convicted of and sentenced for the lesser included offense of child molestation.”
Washington v. State, 775 S.E.2d 719 (Ga. Ct. App. 2015). · cites it 2× “See OCGA § 17-9-40 (“A verdict may be amended in mere matter of form after the jury have dispersed; but, after it has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.”
Rolle v. State, 338 S.E.2d 519 (Ga. Ct. App. 1985). · cites it 2× “See generally OCGA § 17-9-40. Viewed in such context, the jury’s verdict in this case cannot reasonably be interpreted as anything other than a finding of guilt on both counts of the indictment.”
Devin Washington v. State (Ga. Ct. App. 2016). · cites it 6× “” OCGA § 17-9-40. In such a circumstance, “a defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict[.”
Hector Rene Solis v. State (Ga. Ct. App. 2024). · cites it 4× “Solis argues, however, that this procedure is prohibited under OCGA § 17-9-40, which states that “[a] verdict may be amended in mere matter of form after the jury have dispersed; but, after it has been received, recorded, and the jury dispersed, it may not be amended in matter…”
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