Mcfarlin v. State
| Citation | 49 S.E. 267,121 Ga. 329 |
| Parties | McFARLIN v. STATE. |
| Decision Date | 10 November 1904 |
| Court | Supreme Court of Georgia |
GRAND JUROR—DISQUALIFICATION—PLEA IN ABATEMENT.
1. The act of 1903 (Acts 1903, p. 83) expressly declares that a grand juror who has served at one term is ineligible to serve as juror at the succeeding term; and such disqualification may be taken advantage of by challenge made, or plea in abatement filed, in due time.
2. In this case the plea complied with the requirements suggested in Lascelles v. State, 16 S. E. 945, 90 Ga. 372, 35 Am. St. Rep. 216, and was not subject to demurrer.
(Syllabus by the Court)
Error from Superior Court, Coweta County; R. W. Freeman, Judge.
Handy McFarlin was convicted of crime, and brings error. Reversed.
A. H. Freeman, for plaintiff in error.
H. A. Hall, Sol. Gen., for the State.
LAMAR, J. McFarlin was indicted at the September term, 1904, of Coweta superior court He filed a plea in abatement on the ground that under the act approved August 15, 1903 (Acts 1903, p. 83), three of the grand jurors by whom the indictment was returned were ineligible, because they had previously served as grand jurors at the March term, 1904, of Coweta superior court; that no warrant had been issued for his arrest; that no bond had been given by him to appear at court; that he had no notice or knowledge that the grand jury at the September term would attempt to indict or would indict him; that he had had no prior opportunity to challenge the ineligible grand jurors; and that his plea was filed at the first opportunity he had for making this objection. There is no written demurrer or traverse in the record. It is, however, recited that, this "plea having been filed and argued the same is hereby overruled."
We cannot, of course, consider statements of what occurred at the hearing, made in the briefs of both counsel, but which are not included in the judge's certificate. No traverse having been filed, and the record failing to show that the case was submitted, as in Wells v. State, 118 Ga. 556, 45 S. E. 443 (7), to the judge or to the jury, and it not appearing that the case was heard by him or the jury on evidence, we are forced to the conclusion that the plea was stricken on motion, as being insufficient.
It is always necessary that challenges to jurors should be in due time, or else there will be a conclusive presumption that the want of qualification has been waived by all concerned Jordan v. State, 119 Ga. 443, 46 S. E. 679. But here the plea avers that the...
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Thomas v. State
......If the plea of former jeopardy had been disposed of In the manner contended by the counsel for the plaintiff in error, the defendant should have been discharged, because under the decisions in Franklin v. State, 85 Ga. 570, 11 S. E. 876, McFarlin v. State, 121 Ga. 329, 49 S. E. 267, Hill v. State, 122 Ga. 166, 50 S. E. 57, and Massey v. State, 124 Ga. 24, 52 S. E. 78, the defendant had been placed in jeopardy. The jury which had been impaneled and sworn, and which was discharged by the judge upon his own motion, was a qualified ......
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Thomas v. State
...... former jeopardy. If the plea of former jeopardy had been. disposed of in the manner contended by the counsel for the. plaintiff in error, the defendant should have been. discharged, because under the decisions in Franklin v. State, 85 Ga. 570, 11 S.E. 876, McFarlin v. State, 121 Ga. 329, 49 S.E. 267, Hill v. State,. 122 Ga. 166, 50 S.E. 57, and Massey v. State, 124. Ga. 24, 52 S.E. 78, the defendant had been placed in. jeopardy. The jury which had been impaneled and sworn, and. which was discharged by the judge upon his own motion, was a. qualified ......
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Tompkins v. State
......In McFarlin v. State, 121 Ga. 329, 330, 331, 49 S. E. 267, this court, speaking through Justice Lamar (now Associate Justice of the Supreme Court of the United States), in reference to the provision of law that grand jurors shall not render consecutive service, said: "The language of the statute and ......