Allen v. The State Of Ga.
| Decision Date | 31 January 1874 |
| Citation | 51 Ga. 264 |
| Parties | Joseph H. AllEn, plaintiff in error. v. The State of Georgia,defendant in error. |
| Court | Georgia Supreme Court |
Constitutional law. Jury. Evidence. Criminal law. Practice in the Supreme Court. Before Judge Strozer. Dougherty County. At Chambers. July 16th, 1873.
*When this case was called a motion was made to dismiss the writ of error because the bill of exceptions had never been served upon the solicitor general of the AIbany circuit. The papers disclosed that the trial had been had in the county court, and the writ of certiorari sued out thereto. The hearing upon the certiorari was had before the judge of the superior court, at chambers, and it is to his judgment that the bill of exceptions was filed. Service was made upon the solicitor of the county court. The motion was overruled, the court enunciating the principle embraced in the third head-note.
For the facts, see the decision.
Henry Morgan, for plaintiff in error.
B. B. Bower, solicitor general, by R. F. Lyon, for the state.
The defendant was tried in the county court of Dougherty county on a written accusation, for vagrancy, as provided by the 31st section of the act of 1872 establishing that court, and the amendatory act thereof of 1873, and found guilty. The defendant sued out a writ of certiorari to the superior court, alleging that errors were committed in the county court on the trial of the case. After hearing and considering the alleged errors contained in the certiorari, the court overruled the same, and the plaintiff in certiorari excepted.
1. One of the errors complained of is that the defendant, on his trial in the county court, was entitled to have been tried by a jury of twelve men instead of a jury of five men as provided by the 31st section of the act of 1872, and the 3d section of the amendatory act of 1873. The constitution of 1868 does not declare that the right of trial by jury, as heretofore used in this state, shall remain inviolate, but the constitution of 1868 declares that the right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate, and that thegeneral assembly shall provide by law for the selection of upright and intelligent persons to *serve as jurors. The words "except where it is otherwise provided in this constitution, " doubtless has reference to that clause which authorizes the superior court to render judgment without the verdict of a jury in civil cases where no issuable plea is filed, and not to the number of persons who should compose the jury. Ifthe words trial by jury as heretofore used in this state, were in the constitution of 1868 there would have been some ground for supposing that a common law jury of twelve men as heretofore used in this state was intended, and no other. But the words "as heretofore used in this state" are omitted in the constitution of 1868, and by that same constitution it is declared that a jury of seven shall be a lawful jury in the district court which was authorized to...
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Willis v. State
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