Staten v. State

• Court: Georgia Supreme Court
• Writing for the Court: FISH, C.J.
• Citation: Staten v. State, 141 Ga. 82, 80 S.E. 850 (Ga. 1913)
• Decision Date: 09 December 1913
• Parties: STATEN v. STATE.

80 S.E. 850

141 Ga. 82

STATEN v. STATE.

Supreme Court of Georgia

December 9, 1913

Syllabus by the Court.

Where there are two conflicting sections in a Code, both derived from legislative acts, and the Code has been adopted by one act of the Legislature, that section prevails which is derived from the later act; such being considered the last expression of the lawmaking power on the subject.

Accordingly where an act of the Legislature declared that a man over 60 years of age was disqualified to perform jury service, and a later act declared that one of that age was exempt from jury duty if he should claim the exemption, but that he was not disqualified should he choose to serve, and both acts were subsequently embodied in a Code which was adopted by the General Assembly in one and the same act as an entire body of the laws of the state, the later act will govern. The fact that a petit juror in a criminal case is over 60 years of age is not ground of challenge for cause.

Certified Questions from Court of Appeals.

Ben Staten was convicted of an offense and brought error to the Court of Appeals. Question certified to the Supreme Court. Question answered.

See also, 78 S.E. 766; 80 S.E. 853.

F. W Copeland, of Rome, and Geo. G. Glenn, of Dalton, for plaintiff.

Sam P Maddox, Sol. Gen., of Dalton, for the State.

FISH C.J.

The Court of Appeals has certified to the Supreme Court the following question, a decision of which is found by that court to be necessary to a determination of the case: "Is the fact that a petit juror in a criminal case is over 60 years of age ground of peremptory challenge? In this connection attention is especially called to the following decisions of the Supreme Court (as well as to other rulings of the Supreme Court on the same subject), with the request that this court be advised whether there is any irreconcilable conflict in these decisions, and, if so, which of them states the correct rule that should be followed: Cohron v. State, 20 Ga. 752; Thomas v. State, 27 Ga. 287; Burroughs v. State, 33 Ga. 408; Doyal v. State, 70 Ga. 142; Carter v. State, 75 Ga. 750."

In regard to the impaneling of a jury to try one indicted for a felony, the Penal Code (1910), § 999, declares:

"On calling each juror, he shall be presented to the accused in such a manner that he can distinctly see him, and then the state, or the accused, may make either of the following objections, viz.:

1. That he is not a citizen, resident in the county.

2. That he is over sixty or under twenty-one years of age.

3. That he is an idiot or lunatic, or intoxicated.

4. That he is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury."

This section is a codification of the act of 1856 (Acts 1855-56, p. 229), and was embodied in the Code of 1863 and all subsequent Codes, of which those of 1863, 1895, and 1910 were adopted by the General Assembly. The Constitution of 1868, art. 5, § 13, in effect abolished the distinction between grand and petit jurors, making the only qualification of a juror that he be an upright and intelligent person; and the act of 1869 (Acts 1869, pp. 139, 140), to carry into effect the provision of that Constitution, prescribed no other qualification for jurors than that named in the Constitution, but provided for the mode and manner in which jury boxes should be made up. So at that time "the law did not disqualify a person over 60 years of age from serving on the grand or petit jury." Carter v. State, 75 Ga. 747, 749. In 1875 (Acts 1875, [80 S.E. 851] p. 98) an act was passed, declaring: "That, from and after the passage of this act, all persons in this state over the age of sixty years shall be exempted from service as jurors: Provided, that this act shall not disqualify such persons from serving as jurors when they are willing to serve." The provisions of this act appeared in subsequent Codes, and are now contained in the Penal Code (1910) § 871, the language of which is: "The following persons shall be exempt from all jury duty, civil and criminal * * * All male persons over sixty years old. Nothing herein contained shall be construed to work a disqualification of any of the classes named, or to exclude them from the jury box." The Constitution of 1877 (article 6, § 18, par. 2, Civil Code, § 6546) declares that: "The General Assembly shall provide by law for the selection of the most experienced, intelligent, and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless the grand jurors shall be competent to serve as traverse jurors." The act of 1879 (Acts 1878-79, p. 171), like the act of 1875, exempted from jury duty "all male persons over sixty years old," but provided that nothing contained in the act should be construed to work a disqualification of any of the classes named therein, or to exclude them from the jury box. The substance of this act is also to be found in Penal Code (1910), § 871. The act of 1892 (Acts 1892, p. 61), codified in sections 819 and 820 of the Penal Code of 1910, provided for the selection of grand and traverse jurors, making jury boxes, how juries should be drawn, and that grand jurors may serve as traverse jurors. The act of 1911 (Acts 1911, p. 72) also recognizes the fact that grand jurors may serve as traverse jurors.

It is clear that there is an irreconcilable conflict between the act of 1856, embodied in the Penal Code (1910) § 999, making the fact that a juror is over 60 years of age cause for a challenge for cause, and the later acts above referred to, embraced in the Penal Code (1910), §§ 871, 819, 820, to the effect that a juror over 60 years of age may claim exemption from jury service, but is not disqualified from performing such service. The question, therefore, arises, What is the law as to the matter contained in the conflicting sections of the Code? Other courts have adopted different methods for arriving at the intention of the Legislature in such a case, or in determining which section shall govern. And the fact that chapters of a Code were adopted separately and on different dates by the Legislature has led to the ruling by some courts that the section in a chapter adopted at the later date will prevail over a conflicting section of a chapter previously adopted, even though the Code as a whole was to take effect at a subsequent fixed time; while other courts, in the case of irreconcilable conflict in two sections of a Code, have held the last in numerical order to be the law. The Codes of this state which have been adopted by the General Assembly have been adopted in their entirety as a body of laws by a single legislative act.

This court, for the purpose of determining what the statutory law is when two sections of the Code adopted by the Legislature are in irreconcilable conflict, has adopted the following rule: "Where there are two conflicting sections of a Code, and both are derived from legislative acts, that section prevails which is derived from the later act, such being considered the last expression of the lawmaking power on the subject." Berry v. Jordan, 121 Ga. 537, 49 S.E. 607. See, also, Lamar v. Allen, 108 Ga. 158, 33 S.E. 958; Puryear v. Farmers' Mutual Ins. Asso., 137 Ga. 579, 580, 73 S.E. 851. This is in line with decisions of some of the other courts on the same question. See 1 Lewis' Suth. Stat. Const. (2d Ed.) § 281, and cases cited in note 54.

Applying this ruling to the case in hand, it follows that section 999 of the Penal Code (1910), a codification of the act of 1856, declaring the fact that a juror is over 60 years of age is a disqualification, and therefore cause for objection by either party, must yield to section 871 of the same Code, which is a codification of later acts, as hereinbefore stated, and which declares that a juror over 60 years of age be exempt from jury duty if he chooses to claim the exemption, but is not disqualified to serve if he is willing to do so. Accordingly, the fact that a petit juror in a criminal case is over 60 years of age is not ground of challenge for cause.

In view of what we have said and the ruling made, it may not be necessary to answer the remaining portion of the question propounded by the Court of Appeals, that is, whether there is any irreconcilable conflict in the decisions referred to in the question, and, if so, which shall prevail. However, we will examine such cases. In Cohron v. State, 20 Ga 752, a ground of the motion for a new trial was that one of the jurors, naming him, who tried the accused, was over 60 years of age, which fact was not known to counsel for accused until after such juror was sworn in chief. It was not pretended that the accused himself did not know, before the juror was sworn in chief, that he was over 60 years of age. It was held: "The objection that the juror was over 60 years, if tenable at all, is a disqualification which must be shown before he is sworn in chief, and is no ground for a new trial after verdict; especially if the fact was known to the defendant beforehand." So the ruling in effect was that, even if the juror was disqualified, no timely objection as to his disqualification was raised. It is not out of place to quote some of...