Williams v. State

120 S.E. 131, 31 Ga. App. 173, 1923 Ga. App. LEXIS 815

Opinion

Bloodwortií, J.

We will amplify the 3d'headnote only. Ground 4 of the motion for a new trial alleges that the movant should be given a new trial because when the case was called there were only forty-eight jurors in court, two of whom were disqualified, and that he was “entitled to have a panel of forty-eight jurors put upon him for the purpose of selecting the jurors in said case.” This ground does not show that then and there the accused, challenged the array in writing, as provided by section 998 of the Penal Code of 1910. In Moon v. State, 68 Ga. 694 (1), Justice Speer said: “It was the duty of the prisoner, when the panel of jurors was put upon him, to challenge the array for any cause going to show that it was not fairly or properly impanelled, or ought not to be put upon him. So that the court could then determine the sufficiency of the challenge at once.” Judge Powell, in Ivey v. State, 4 Ga. App. 831 (62 S. E. 566), said: “The putting on of the panel may be waived expressly or by implication. Vaughn v. State, 88 Ga. 731 (16 S. E. 64). If the panel does not contain the requisite number of jurors when it is put upon the defendant, the law prescribes, in Penal Code, § 972 (Code of 1910, § 998), his sole remedy,—he may challenge the array. If he does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him., Jordan v. State, 22 Ga. 546; Thomas v. State, 27 Ga. 287; Moon v. State, 68 Ga. 695.” Under the foregoing rulings there is no merit in this ground of the motion.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.