Kneeland v. The State Of Ga.

• Decision Date: 28 February 1879
• Citation: 62 Ga. 396
• Parties: Kneeland et al. v. The State of Georgia.
• Court: Georgia Supreme Court

62 Ga. 396

Kneeland et al. v. The State of Georgia.

Supreme Court of the State of Georgia

(February Term, 1879.)

Criminal law. Practice in the Superior Court. City Courts. Constitutional law. Witness. Evidence. Before Judge Clark. City Court of Atlanta. June Term, 1878.

Kneeland, Cody and Bronk were respectively tried for keeping a faro table. They demanded jury trials. The usual jury in the city court was empaneled, viz: twelve jurors, from whom the state and defendant struck until five were left as a traverse jury. Each of them was found guilty, moved for a new trial, and on its refusal each excepted The cases were argued together in the supreme court. For the other facts see opinion.

Hopkins & Glenn, for plaintiffs in error, cited (on jury) const. 1877, art. 6, par, 1, sec. 18, Oh evidence, const. 1877, art. 1, par. 6, sec. 1; 40 Ga., 6S8; 54 lb., 156; 1 Gr. Ev., 451 and notes; 4 Wend., 229; 8 Ib., 59i; 11 Iowa, 459; 1 Caldw., (Tenn.), 146; 2 Metc, (Ky.), 387; 6 Gratt. (Va), 481.

Howard Van Epps, solicitor city court, for the state, cited (on evidence) Code, sees. 5224, 3854, 381; const.1877, *art. 1, sec. 1, par. 6; Code, sec. 4545; 1 Ga., 255. On the jury, 5 Ga., 205; 19 Ib., 6'9; 51 lb,, 261; Code, sec. 5124; Cobb's Dig., l121; const. 1877, art. 6, sec. 4, par. 1; 25 Ga., 222.

JACKSON, Justice.

These three cases were argued together before us, the same questions substantially being made in each of them- 1. One of the defendants filed a plea of misnomer in abatement, the issue was found against him, then he pleaded not guilty, he was found guilty, thereupon he made a motion for a new trial and to set aside the verdict of guilty, which was found by a jury other than the jury which passed upon the special plea, and in the motion to set aside this latter verdict and to grant a new trial on that issue, he incorporated exceptions in regard to the trial of the special plea.

It is too late for him to except to those proceedings, and his objections thereto will not be considered after pleading not guilty, and trial and verdict of guilty. Bird v. The State, 53 Ga., 602.

2. The act in regard to practice in the city court of Atlanta, does not require a trial by jury; but if a defendant wants a jury, it is his privilege to demand it. In this case he did demand a jury, and the act provided only for a jury of five men, to be stricken from a jury of twelve. This act was passed prior to the constitution of 1877, which by the l8th section of the 3d article thereof, prohibits a jury of less than twelve men. After trial before the jury of five and conviction, the defendants moved for a new trial on the ground that they were not tried by twelve men—the trial being had subsequently to the constitution of l877 going into effect by ratification thereof by the people. No law had been passed by the general assembly to carry the constitution into effect by any practical machinery providing for a jury of twelve men; so that when the defendants demanded *jury trial, they will be understood to have demanded that sort of trial by jury, which, and which only, the court could give them, and when they had their rights passed upon by such a jury of their own seeking and choosing, and the issue was found against them, it would be to allow them to speculate upon the chances of a trial they themselves sought, if they were then permitted to object to the jury which they themselves had demanded should try them, and which did try them by their free choice. We do not indeed think that the constitution of 1877 was intended to upset and annul the law of practice in the city courts until some other law was passed to take its place. If so, the framers intended to suspend all trials by jury therein until the general assembly should meet and enact another law; and as the first meeting of the general assembly was by the constitution itself fixed for November, 1878, they would have intended to stop criminal trial in the city courts for some fifteen to eighteen months. No sane man believes that such was the object had in view. The true intent and spirit thereof was that the general assembly should provide for juries of twelve men, and until that was done the old machinery should work on.

However that may be, these defendants demanded trial by these five men; they got the sort of trial they asked for; and they will not be heard, after conviction, to complain of what they not only acquiesced in, but insisted upon as a legal right.

See 5 Ga., 205; 19 Ga., 623; 51 Ga., 264; Code...