Ellis v. State

• Decision Date: 05 November 1901
• Citation: 39 S.E. 881,114 Ga. 36
• Parties: ELLIS. v. STATE.
• Court: Georgia Supreme Court

39 S.E. 881

114 Ga. 36

ELLIS.

v.STATE.

Supreme Court of Georgia.

Nov. 5, 1901.

CRIMINAL LAW—NEW TRIAL—EXCUSING JURORS.

1. While, as a general rule, persons who have been duly drawn and summoned, and who are subject to serve as jurors, should not be excused from service because of private business, yet where it appears that, of the number of persons who are duly summoned to so appear and serve, there is an excess of the number required by law for jury service, it is not cause for a new trial that the trial judge, for any reason satisfactory to himself, excused one of the number not so required.

2. Under the assignments set out in the motion, it does not appear that the trial judge committed any error which would authorize the grant of a new trial, and the evidence was amply sufficient to support the verdict.

(Syllabus by the Court.)

Error from superior court, Sumter county. Gabe Ellis was convicted of crime, and brings error. Affirmed.

Blalock & Cobb, for plaintiff in error.

P. A. Hooper, Sol. Gen., for the State.

LITTLE, J. The plaintiff in error was by the grand jury of Sumter county indicted for the offense of incestuous adultery. He was tried and convicted, and to the overruling of a motion for new trial made by him he excepted.

It was contended by counsel for plaintiff in error that the judge had no legal power to excuse from service a juror who had been drawn and summoned, on the ground that such service would interfere with the private business of the person so drawn, and that the failure of the trial judge to sustain the challenge to the array of jurors made in this case by the defendant at the time of his arraignment presents this question for determination. An examination of the challenge shows, however, that this question is not raised by the challenge in such a way that it can be passed upon by this court, so as to have any binding effect. The challenge recites the fact that R. L. McLeod and 47 other named persons were duly drawn and summoned as jurors for the third week of the May term of Sumter superior court; and it alleges that these persons were legally drawn and summoned, and were qualified to serve as jurors for that week. It further alleges that the presiding judge excused R. L. McLeod, one of the persons drawn for service, on his application, and because of the statement by him that he would suffer loss in his business if required to serve, "which, it is alleged, was not a lawful excuse; and the defendant insisted in said challenge that McLeod should, under the law, have been impaneled and put on the defendant, and, because he was not, the panel which was put upon him was not a legal one.

Section 852 of the Penal Code, in effect, de clares that the names of the persons selected by the jury commissioners as prescribed by law shall be placed on separate tickets in the jury box, and that the judge shall draw therefrom 36 names to serve as a petit jury for the trial of civil and criminal cases, and that they shall be summoned in the regular manner. The succeeding section declares that from the number so drawn the judge shall have made up two panels, of 12 jurors each. Section 858 of the same Code prescribes that, when any person shall stand indicted for a felony, the court shall have impaneled 48 jurors, 24 of whom shall be taken from two panels of the petit jurors, from which to select the jury, while the succeeding section gives the presiding judge authority to draw from the box talesmen necessary to fill up the panel, or he may order a sufficient number of such to be summoned by the sheriff. So that in the case of the trial of a felony the 48 jurors who are put upon the accused shall consist of the two panels of Jurors regularly organized by the court, and 24 jurors drawn from the box at summoned by the sheriff....