McHan v. State

• Decision Date: 25 June 1974
• Docket Number: No. 28920,28920
• Citation: 207 S.E.2d 457,232 Ga. 470
• Parties: Albert E. McHAN v. The STATE.
• Court: Georgia Supreme Court

Page 457

207 S.E.2d 457

232 Ga. 470

Albert E. McHAN v. The STATE.

No. 28920.

Supreme Court of Georgia.

June 25, 1974.

Rehearing Denied July 9, 1974.

McCamy, Minor, Phillips & Tuggle, J. T. Fordham, McDonald, McDonald & McDonald, Ralph F. Martin, Jr., Dalton, for appellant.

Samuel Brantley, Dist. Atty., Dalton, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

NICHOLS, Presiding Justice.

On February 11, 1973 the defendant was arrested and charged with the murders of Larry and Michael Cross and with aggravated assault upon Billy Cross. On February 15, 1973 attorneys were appointed to represent him. A multiple count indictment was returned by the grand jury in March, 1973. After indictment a motion to quash was filed and overruled. Prior to arraignment a plea in abatement was filed which challenged the jury as not being made up of fairly representative cross section of jurors because women and persons between 18 and 21 years of age were not proportionately represented. After hearing evidence the plea in abatement was overruled and the defendant was then tried and convicted. Life sentences were imposed for the murders and a five year sentence for the aggravated assault. Thereafter the defendant's amended motion for new trial was overruled and the present appeal filed.

1. The motion for new trial as amended contains grounds which have not been argued in this court. These grounds are deemed abandoned. Supreme Court Rule 18(c), 226 Ga. 905, 914; West v. State,229 Ga. 427(3), 192 S.E.2d 163. All grounds argued will be passed upon.

2. The defendant was represented by counsel prior to indictment. The motion to quash the indictment because of the makeup of the grand jury, which was made after the indictment was returned, was properly overruled. Compare Wooten v. State, 224 Ga. 106, 160 S.E.2d 403; Miller v. State,224 Ga. 627, 630, 163 S.E.2d 730, and cits.

3. The failure to revise the jury list in accordance with the time table set forth in Code § 59-106 as amended does not invalidate such jury list for such direction is merely directory. See Haden v. State, 176 Ga. 304(1), 168 S.E. 272.

4. A traverse jury list which was made up prior to the age of majority being lowered from 21 to 18 is not constitutionally invalid and does not show that the jury commissioners discriminated in making up such list by not including persons within such age bracket.

5. Evidence which merely shows the number of women in a county as compared to the total population and which does not show the number with children under 14 years of age or the number who requested in writing that they not be included in the list of jurors permitted by Code Ann. § 59-112 is not sufficient to show a purposeful exclusion of women from the jury. The judgment overruling the plea in abatement shows no error.

6. In Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971), it was held: 'Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or...