Tompkins v. State
| Decision Date | 13 August 1912 |
| Citation | 75 S.E. 594,138 Ga. 465 |
| Parties | TOMPKINS . v. STATE. |
| Court | Georgia Supreme Court |
TOMPKINS .
v.
STATE.
Supreme Court of Georgia.
Aug. 13, 1912.
[75 S.E. 594]
1. Criminal Law (§ 278*)—Grand Jury (§ 17*)—Qualifications.
By Penal Code, § 824, grand jurors who have served at one regular term of the superior court are declared ineligible for jury duty at the next succeeding regular term.
(a) In such a case a challenge to the array of the grand jury, made before the indictment is found, should be sustained by the trial judge.
(b) Likewise a plea in abatement, filed after the indictment is found and before arraignment of the defendant, based on substantially the same ground, should be sustained.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 638-642; Dec. Dig. § 278;* Grand Jury, Cent. Dig. §§ 42-47, 52; Dec. Dig. § 17.*]
2. Grand Jury (§ 5*) — Grand Jurors — Service—Eligibility.
Pen. Code 1910, § 824, provides that any juror who has served as a grand or traverse juror at any session of the superior court shall be ineligible for duty as a juror at the next succeeding term of the superior court, providing that nothing contained therein should prevent any traverse juror from serving as a grand juror at the next term of the superior court of his county. Section 822 declares that at the close of each term the judge shall draw the grand iurors; but this was changed by Act Aug. 15, 1911 (Laws 1911, p. 81), creating the Dublin circuit, which, after stating the times for holding court in each of the counties of the circuit, declares that the grand juries of the counties of that circuit shall not be convened, except for the spring and fall terms of the court, unless in the discretion of the presiding judge it shall be deemed expedient to call a special session of the grand jury at some other term. Held that, in order to make such latter provision conform to section 824, it should be construed only to authorize the judge to call a special session of the grand jury at some other term at which under the general law it is competent to call in the same grand jury, and did not authorize the same jurors to serve at the succeeding regular term.
[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 8-13, 15; Dec. Dig. § 5.*]
Error from Superior Court, Laurens County; K. J. Hawkins, Judge.
Steve Tompkins was convicted of murder, and he brings error. Reversed.
S. P. New, Geo. B. Davis, and Fred Kea, all of Dublin, for plaintiff in error.
E. D. Graham, Sol. Gen., of McRae, and T. S. Felder, Atty. Gen., for the State.
HILL, J. Steve Tompkins was indicted on the charge of murder, and was found guilty by the jury, without recommendation. Before the indictment was found true, the defendant challenged the array of the grand jury, on the ground that the same grand jury had served at the regular term of the superior court next preceding that at which the jury was impaneled. The court overruled the challenge. After the indictment was returned, the defendant filed a plea in abatement on various grounds, but substantially on the same grounds as the challenge to the array. This plea was also overruled by the court. After verdict, a motion for a new trial was overruled, and the defendant excepted.
Under the system as it existed before the Dubblin circuit was created, Laurens county was in the Oconee circuit, and the terms of its superior court were in January and July. Acts 1910, p. 1332. In July, 1911, a grand jury was drawn, which normally would be impaneled at the following January term, 1912. On August 18, 1911, the act was approved which created the Dublin circuit. It did not expressly provide at what term the grand jury which had been previously drawn should be impaneled. It created quarterly sessions for the courts in the Dublin circuit. In Laurens county the sessions were to begin on the fourth Mondays in January, April, July, and October. Acts 1911, p. 81. If nothing more was said, the grand jury would naturally stand for the January term, 1912, at which next following term the grand and traverse jurors would be impaneled according to the general law. Penal Code, § 822, declares that at the close of each term the judge shall draw grand jurors; but the act creating the Dublin circuit undertook to change this general law. After stating the times for holding court in each of the counties of the circuit, it then contained this clause: "Provided, however, that the grand juries of the counties of this circuit shall not be convened except for the spring and fall terms of the court, unless in the discretion of the presiding judge it shall be deemed expedient to call a special session of the grand jury at some other term." Acts 1911, p. 81, § 6. It appears that the grand jury which had been previously drawn was actually impaneled and charged, and served at the January term, 1912, of Laurens superior court. For the-April term, 1912, no new grand jury was drawn, but in vacation preceding...
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