Pollard v. State

• Decision Date: 14 September 1918
• Docket Number: 920.
• Citation: 96 S.E. 997,148 Ga. 447
• Parties: POLLARD v. STATE.
• Court: Georgia Supreme Court

96 S.E. 997

148 Ga. 447

POLLARD v. STATE.

No. 920.

Supreme Court of Georgia

September 14, 1918

Syllabus by the Court.

The right of trial by jury, as guaranteed by article 6, § 18 par. 1, of the Constitution of this state, involves as a necessary and indispensable prerequisite the right of one indicted for felony to select the jury for the trial of his case from an array or panel indifferently drawn or chosen from the whole body of citizens, and not from a restricted number thereof, qualified to serve as jurors for such trial.

Under the law of this state, the names of all persons qualified to serve as jurors for the trial of criminal causes, including the names of grand and petit jurors, are required to be entered upon the petit jury list and placed in the petit jury box.

The names of "not exceeding two-fifths of the whole number" of persons qualified to serve as traverse jurors for the trial of criminal causes are entered upon the grand jury list and deposited in the grand jury box.

Accordingly it was good cause of challenge to the array, in the trial of a felony case, that the entire panel of 48 jurors put upon the defendant was drawn by the presiding judge exclusively from the grand jury box. The error in overruling the challenge to the array, based upon the ground stated rendered the subsequent trial of the defendant nugatory, and it is unnecessary to pass upon the other assignments of error.

Additional Syllabus by Editorial Staff.

Under the system of selecting jurors by a board of jury commissioners, an objection to the validity of the panel as a whole can be made by way of challenge to the array.

The jury commissioners, under the law, are the judges of the qualification of citizens to be placed on the jury lists and in the jury boxes of a county, and the opinion neither of witnesses nor of judges can overrule their discretion.

Error from Superior Court, Fulton County; B. H. Hill, Judge.

William Pollard was convicted of felony, his motion for new trial overruled, and he brings error. Reversed.

John A. Boykin, Sol. Gen., E. A. Stephens, and R. P. Jones, all of Atlanta, for the State.

GEORGE J.

William Pollard was indicted and tried for a felony. Before arraignment he filed a challenge to the array of jurors put upon him, on the ground that the panel of 48 jurors was drawn exclusively from the grand jury box, and that therefore an illegal jury was put upon him, and he was thereby deprived of a trial by jury as guaranteed by article 6, § 18, par. 1, of the Constitution of Georgia, which declares that "the right of trial by jury * * * shall remain inviolate," and of due process of law as guaranteed by article 1,§ 1, par. 3, and of the equal protection of the law as guaranteed by article 1, § 1, par. 2, of the Constitution of Georgia. In his challenge to the array the defendant insisted that he was entitled to a trial by a jury drawn and selected as juries are drawn under the laws of this state for the trial of all felony cases; that is, from the petit jury box. He prayed that the jury impaneled and put upon him be discharged, and that a jury drawn according to the laws of the land be put upon him. The court overruled the challenge to the array, and compelled the defendant to select a jury from the panel drawn exclusively from the grand jury box. To this ruling the defendant excepted pendente lite. The trial resulted in a verdict of guilty, and the defendant made a motion for new trial upon several grounds. His motion was overruled, and he excepted, assigning error upon his exceptions pendente lite to the order in overruling the challenge to the array of jurors.

"If the jury was improperly impaneled at common law, and the objection went to the panel as a whole, the defect could be taken advantage of by a challenge to the array. Likewise, under the system of selecting jurors by a board of jury commissioners, if the objection goes to the validity of the panel as a whole it can be made by way of challenge to the array. Thompson v. State, 109 Ga. 272, 34 S.E. 579." Carter v. State, 143 Ga. 632, 639, 85 S.E. 884, 886; Penal Code, § 998.

In Boon v. State, 1 Ga. 631, it was held:

"It is a good cause of challenge to the array in a criminal case that the tales jurors presented on the panel and put upon the prisoner were drawn from the grand jury box by the presiding judge, and the list of the names so drawn was furnished to the sheriff by the court with instructions to summon them to serve as tales jurors on the trial."

In that case it was strongly intimated that there was no statute of the state which authorized grand jurors to serve as tales jurors for the trial of criminal causes. In Rouse v. State, 4 Ga. 136 (4), it was held that "grand jurors are competent talesmen to try criminal causes." The opinions in both cases were by Lumpkin, J. In the Rouse Case the challenge was upon the ground that the panel had been taken exclusively from the petit jury list-- exactly the reverse of the practice repudiated in the Boon Case. Boon's trial occurred in 1846, and Rouse's trial in 1847.

Under the thirty-eighth section of the judiciary act of 1799 (Prince's Dig. p. 428), it was made the duty of the clerks of the superior courts of the several counties in the state to procure from the tax collectors of the respective counties and furnish to the court a list of all persons liable and qualified to serve as grand and petit jurors. Under that act:

"All free male white citizens, above the age of twenty-one years, and under sixty years, are declared to be qualified and liable to serve as petit jurors for the trial of all civil causes for the recovery of debts or damages, to any amount whatsoever; but no person shall be capable to be of a jury for the trial of treason, felony, breaches of the peace, or any other cause of a criminal nature, or of any estate of freehold, or of the right or title to any lands or tenements, in any court of record within this state, who shall not be qualified to vote at elections for members of the Legislature."

See Marbury & Crawford, 303.

By section 39 of the Judiciary Act:

The clerks of the several courts were required to correct the several jury lists annually, by "particularly specifying, in distinct columns, the persons most able, discreet and qualified * * * to serve as grand jurors," and the clerk was further required to fairly enter the jury lists in a book for that purpose, "distinguishing in separate columns the persons selected to serve as grand jurors, and those for the trial of civil and criminal causes as aforesaid; and the names of the persons so selected, shall be written on separate pieces of paper, and put into the different apartments of a jury box, * * * in the construction and manner hereinafter prescribed, to wit: There shall be an apartment in the said jury box marked No. 1, in which shall be placed the names of all the persons selected to serve as grand jurors; and another apartment marked No. 2 into which shall be placed the names of all the persons selected for the trial of civil and criminal causes as aforesaid." Watkins' Dig. p. 702.

The further provisions of the Judiciary Act of 1799 were considered in the Rouse Case, supra, and the court concluded that:

"If grand jurors are competent, then, to try criminal causes, it is apparent that it must be by authority derived from some other source than our own state legislation. In other words, it must be upon the principles of

Magna Charta and the common law, as guaranteed by the Constitution."

Reference is made to the Constitution of 1798, and the conclusion is that the provision in that Constitution, preserved in substance in all our Constitutions, that "the right of trial by jury shall remain inviolate," is but the statement of the common law as interpreted by Blackstone and as universally applied by the English courts. To quote further from the opinion:

"By the common law all persons are entitled to be tried by their peers. This privilege is guaranteed by the Constitution to every citizen of this state. * * * How, then, is this fundamental principle in criminal trials to be secured? By holding every citizen of the county, qualified by law to serve as a juror, competent to be presented on the array by the sheriff, and it is then for the accused to select twelve for his jury, who, 'from situation, condition in life, education, morals, employment and other circumstances,' he shall feel to be his equals."

This conclusion reached in Rouse's Case is in complete harmony with the ruling in Boon's Case. So far as material here, the principle in both cases is that the panel or array, when drawn by the trial judge, must be indifferently chosen and from the whole body of the citizens of the county qualified to serve as jurors. In 1846-47 the grand jurors did not constitute the whole body of qualified jurors; neither did the petit jurors. In Woolfolk's Case, 85 Ga. 69, 11 S.E. 814, "the judge during the trial, when additional talesmen were needed, drew their names, some of them from the grand jury box, and some of them from the petit jury box." In the course of the opinion, by Simmons, J., it was said:

"The uniform practice in the superior courts, so far as I know, since the passage of this act [Acts 1881-82, p. 120; Penal Code 1910, § 862] has been that the judge, when a great number of jurors are required, draws from both boxes. And the statute expressly authorizes this; for it does not say that he may draw from the petit jury box, or from the grand jury box, but from the 'jury boxes.' * * * If the judge were to confine himself to the petit jury box in the drawing, the most intelligent and upright men in the community might not be called upon to serve upon the jury in criminal cases. Only two-fifths of the qualified

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