White v. State, 59396

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtSOGNIER; DEEN, C. J., and BIRDSONG
Citation268 S.E.2d 790,154 Ga.App. 527
PartiesWHITE v. The STATE.
Docket NumberNo. 59396,59396
Decision Date05 May 1980

Page 790

268 S.E.2d 790
154 Ga.App. 527

No. 59396.
Court of Appeals of Georgia.
Submitted Feb. 6, 1980.
Decided May 5, 1980.

Page 791

[154 Ga.App. 528] James C. Carr, Jr., Atlanta, for appellant.

Bryant Huff, Dist. Atty., Johnny R. Moore, Asst. Dist. Atty., for appellee.

[154 Ga.App. 527] SOGNIER, Judge.

White was convicted in the Superior Court of Gwinnett County of attempted theft by taking.

1. Appellant contends the trial court erred by allowing the state, over objection, to reopen voir dire examination and exercise a peremptory challenge after a jury had been selected. Code Ann. § 59-809 provides, in pertinent part: "When a juror shall have been found competent . . . no other or further investigation before triors . . . shall be had, except upon newly-discovered evidence to disprove his answer or to show him incompetent . . . which may be heard by the judge at any time before any of the evidence on the main issue shall be submitted; and if the juror shall be proved incompetent, the judge may order him withdrawn from the jury and cause another juror to be selected . . ." (Emphasis supplied.) The language of this statute is clear and unambiguous, and the factual situation in this case falls squarely within the situation envisaged by the statute. The prosecuting attorney discovered, after the jury was selected but before it was sworn, that a juror who had not answered when the prospective jurors were asked if any of them knew the defense counsel or had been represented by him did, in fact, know the defense counsel, who had represented the juror's son in a criminal case. The prosecuting attorney immediately brought these facts to the judge's attention. A hearing was held and the juror acknowledged that she knew the defense counsel. The trial court then allowed the state a peremptory challenge against the juror and [154 Ga.App. 528] a new juror was selected. It is clear that such a procedure is authorized. Holton v. State, 137 Ga. 86(1), 72 S.E. 949 (1911); Evans v. State, 37 Ga.App. 156, 139 S.E. 156 (1927). Accord Clemon v. State, 218 Ga. 755, 759(5), 130 S.E.2d 745 (1963).

2. The errors alleged in Enumerations of Error 2 and 3 were not raised at trial. It is well settled that this court will not consider questions raised for the first time on appeal. Sanders v. State, 134 Ga.App. 825, 216 S.E.2d 371 (1975).

Judgment affirmed.

DEEN, C. J., and BIRDSONG, J., concur.

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5 cases
  • Price v. Mitchell, s. 59358
    • United States
    • United States Court of Appeals (Georgia)
    • June 18, 1980
    ...Nos. 59358, 59359. Court of Appeals of Georgia. Argued Feb. 13, 1980. Decided April 18, 1980. Certiorari Denied June 18, 1980. Page 744 [154 Ga.App. 527] Nathaniel Daniel Wages, Winder, for appellant (case no. William G. Tanner, J. L. Edmondson, Lawrenceville, T. Penn McWhorter, Winder, Dea......
  • Gilbert v. State, A97A0615
    • United States
    • United States Court of Appeals (Georgia)
    • March 25, 1997
    ...may have had personal conflicts with them, is not inherently discriminatory or based upon the race of either juror. Cf. White v. State, 154 Ga.App. 527, 528, 268 S.E.2d 790 (1980) (exercise of a peremptory strike by State allowed after juror acknowledged knowing defense counsel). "We must k......
  • McDaniel v. State, 44685
    • United States
    • Supreme Court of Georgia
    • September 8, 1987
    ...peremptory strikes should be available under these circumstances after the jury has been selected and sworn. Compare White v. State, 154 Ga.App. 527, 268 S.E.2d 790 (1980). See generally, Anno., 3 ALR2d 499, 513 (Later Case Service). After the jury is empaneled, the trial court may or may n......
  • Baxter v. State, 61914
    • United States
    • United States Court of Appeals (Georgia)
    • September 22, 1981
    ...of this juror. Appellant's arguments that this procedure was erroneous are clearly [159 Ga.App. 633] meritless. White v. State, 154 Ga.App. 527, 268 S.E.2d 790 2. Appellant argues that it was error to admit into evidence the result of his "inconclusive" polygraph test. The contention that t......
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