Esa v. State

• Decision Date: 18 October 1916
• Docket Number: (No. 23.)
• Citation: 90 S.E. 278,146 Ga. 17
• Parties: ESA. v. STATE.
• Court: Georgia Supreme Court

(146 Ga. 17)

90 S.E. 278

ESA.

v.STATE.

(No. 23.)

Supreme Court of Georgia.

Oct. 18, 1916.

(Syllabus by the Court.)

Certified Questions from Court of Appeals.

Ayad Esa was convicted of crime, and brings error. Question certified by the Court of Appeals. Question answered.

The Court of Appeals desires instructions from the Supreme Court upon the following question:

"Is a juror who was put upon a defendant on a former trial under the same indictment, and was then peremptorily challenged by him, so disqualified that he should not be again put upon the defendant upon a subsequent trial for the same offense, either for the reason (1) that the defendant is thereby denied his legal right of 20 peremptory challenges; or for the reason (2) that putting the same jurors upon the defendant a second time denies him his constitutional right to a trial by a fair and impartial jury under paragraph 5, § 1, art. 1, of the Constitution of Georgia, and under article 6 of article 8 of the Constitution of the United States; or for the reason (3) that by putting the same jurors upon the defendant on the second trial as were challenged by him in the first investigation of the same case he was denied the equal protection of the laws under article 14 of article 8 of the Constitution of the United States?"

E. C. Powers and W. D. McNeil, both of Macon, for plaintiff in error.

John P. Ross, Sol. Gen., of Macon, for the State.

HILL, J. In Blackman v. State, 80 Ga. 785, 7 S. E. 626 (2), it was held:

"That jurors, at some previous trial of the prisoner under the same indictment, have been put upon him and one or more of them rejected by him, does not disqualify them, and is not good even as a challenge to the poll."

In Reid v. State, 50 Ga. 556 (1), this court held:

"When one juror, on a trial of an indictment for a felony, has been sworn, and a nolle prosequi is then entered, and a new bill found, it is not error that the array, with the same juror upon it, is put upon the prisoner; and in such a case the right of challenge, both on the part of the state and the prisoner, is the same as if the former proceedings had not been taken."

And in Johnson v. State, 130 Ga. 22, 60 S. E. 158 (1), it was held:

"Where a person accused of crime was tried and convicted, and a new trial was granted, it furnished no cause of objection on his behalf on the second trial that certain of the jurors then on the jury list had been summoned at the first trial and had been stricken by the state or the...