Hannah v. State

194 S.E. 832, 57 Ga. App. 173, 1938 Ga. App. LEXIS 512

• Court: Court of Appeals of Georgia
• Decided: January 6, 1938
• Docket: 26591
• Status: Published

Opinion

Broyles, 0. J.

The defendant was convicted of the offense of possessing whisky, and his motion for new trial, consisting of the general and two special grounds, was overruled. Counsel for the movant has expressly abandoned all except the first special ground. That ground is as follows: “Because the panel of jurors which was placed upon him [movant] and from which the jury was selected that determined his case was not competent or legal, in that three of the jurors on said panel were not legally drawn and summoned as provided by law. That three of the jurors on the panel of twenty-four which was placed upon movant, namely, M. B. Wilcox, D. D. Veal, and John A. Barker, were not drawn from the traverse-jury box by the Hon. A. J. McDonald, judge of said court [Wilcox superior court]; neither were they summoned by the sheriff of said county as provided by law. That said above-named jurors were caught up by the sheriff and placed on said panel without having been first duly drawn and summoned as provided by law.” Held: The objection to the three jurors, being propter defectum, could have been raised by challenge to the jurors when put upon the accused. It can not be raised as a ground of a motion for new trial, although the defect was not known to movant or his cormsel until after the trial. Brown v. State, 105 Ga. 640 (31 S. E. 557); Shirley v. State, 146 Ga. 9 (2) (90 S. E. 277); Embry v. State, 138 Ga. 464 (75 S. E. 604); Jackson v. State, 125 Ga. 277 (54 S. E. 167); Lampkin v. State, 152 Ga. 229 (8) (109 S. E. 664); Benton v. State, 31 Ga. App. 781 (122 S. E. 97); Harp v. State, 41 Ga. App. 499 (153 S. E. 375) ; Taylor v. Warren, 175 Ga. 800 (3) (166 S. E. 225).

Judgment affirmed.

Madtntyre and Guerry, JJ., concur.