Williams v. State

• Decision Date: 10 May 1954
• Docket Number: No. 18548,18548
• Citation: Williams v. State, 210 Ga. 665, 82 S.E.2d 217 (Ga. 1954)
• Parties: WILLIAMS v. STATE.
• Court: Georgia Supreme Court

Page 217

82 S.E.2d 217

210 Ga. 665

WILLIAMS v. STATE.

No. 18548.

Supreme Court of Georgia.

May 10, 1954.

Rehearing Denied May 31, 1954.

Syllabus by the Court.

There is no error in the judgment of the court below dismissing the extraordinary motion for new trial.

The plaintiff in error was tried and convicted of murder, without a recommendation of mercy, in the Superior Court of Fulton County on March 10, 1953. A motion for new trial was filed and duly overruled. That judgment was affirmed by this court. See Williams v. State, 210 Ga. 207, 78 S.E.2d 521.

On December 1, 1953, plaintiff in error filed his extraordinary motion for new trial. This motion was set for hearing and duly continued until January 18, 1954. When the motion came on for a hearing, it was dismissed on motion of the solicitor general. To this judgment the plaintiff in error excepted and assigns this judgment as error.

The extraordinary motion for new trial contains two grounds, both complaining that the defendant had been denied certain specified constitutional rights guaranteed him under stated provisions of the Constitution of the United States. Ground two has been expressly abandoned, and will not be considered. Ground one contends that, upon the trial of the defendant for murder in the Superior Court of Fulton County, he was denied equal protection of the laws in violation of sec. I of the Fourteenth Amendment to the Constitution of the United States, Code, § 1-815. This ground is long and sets out the process of selecting persons to serve as jury commissioners and persons to serve as jurors, and the empaneling of said jurors to serve in specific cases. The substance of the contention, however, that the defendant was denied equal protection of the laws was that in the selection, drawing, summoning, organizing, empaneling, and challeging of the jury sworn to try him, he was discriminated against on account of his color.

Many methods and instances of discrimination against the defendant are related in ground one of the extraordinary motion. However, it is urged in this court that the defendant is entitled to a new trial because of the fact that the names of White traverse jurors were placed on white paper and that the names of Colored traverse jurors were placed on yellow paper. It is urged that this is discriminatory, and that this practice made it possible to keep the number of Negroes summoned for jury service within the number of peremptory challenges allowed the State and thus enabled the State to keep Negroes from serving on the jury.

It appears from the record that four Negroes were on the panel of 48 put upon the defendant. Three of these were excused for cause. The fourth was called for service by the clerk and was peremptorily challenged by the State, leaving no Negroes on the jury.

The other grounds of the motion need not be set out here, since they are not argued in this court. However, the decision here made will be decisive of all questions in the case, since all relate to the legality of the selection, drawing, summoning, organizing, and empaneling of the jury put upon the defendant.

Carter Goode, Ellis M. Creel, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Carl B. Copeland, William E. Spence, Charlie O. Murphy, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

WYATT, Presiding Justice.

1. The defendant is here attempting by extraordinary motion for new trial to challenge the legality of the jury put upon him in the instant case. He relies entirely upon the case of Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, contending that this case is controlling in the instant case. We do not agree with this conclusion. In Avery v. State of Georgia, supra, the defendant, upon being arraigned for trial in Fulton County, filed a written challenge to the array of traverse jurors put upon him for reasons set out, among them that the names of White jurors were put upon white slips of paper and that the names of Colored jurors were put upon yellow paper. See Avery v. State of Georgia, supra, and Avery v. State, 209 Ga. 116, 70 S.E.2d 716. In the instant case, no challenge to the array of traverse jurors was filed, and no question as to the legality of the jury was raised until after the denial of a motion for new trial had been affirmed by this Court. See Williams v. State, 210 Ga. 207, 78 S.E.2d 521.

It is settled law in this State that, when a panel of jurors is put upon the prisoner, he should challenge the array for any cause which would go to show that it was not fairly and properly put upon him, and that if he fails to do so, the objection is waived and can not thereafter be made a ground of a motion for new trial. See Lumpkin v. State, 152 Ga. 229, 109 S.E. 664; Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156; Cumming v. State, 155 Ga. 346, 117 S.E. 378; Moon v. State, 68 Ga. 687; and Williams v. State, 31 Ga.App. 173, 120 S.E. 131. In the instant case, the defendant made no objection to the jury when the panel was put upon him, and made no objection until he filed this extraordinary motion for new trial after a new trial had been denied and that judgment affirmed by this court. See Willi ams v. State, supra. It follows, therefore, that the judgment of the court below dismissing the extraordinary motion for new trial was not error.

The defendant and his attorney state that they did not know of the facts set out in grounds one and two of the motion for new trial, and 'that the same could not have been discovered by him in the exercise of ordinary diligence.' This is not sufficient to excuse the defendant from the necessity of presenting his written challenge to the array of traverse jurors when the panel was put upon him. See, in this...