White v. State , 1928 Ga. LEXIS 258 ( 1928 )

Hines, J.

1. Except in the selection of tales jurors as provided in sections 858 and 863 of the Penal Code, the judges of the superior courts shall draw petit jurors from apartment No. 1 of the petit-jury box, depositing the names so drawn in apartment No. 2- of said box; and when all names are drawn out of apartment No. 1, then the drawing shall commence from apartment No. 2, and the tickets be returned to apartment No. 1, and so on alternately. Penal Code (1910), §§ 819, 820, 822, 823, 856, 858, 863.

2. The right of trial by jury, as guaranteed by the constitution of this State, involves, as a necessary and indisputable requisite, the right of one indicted for felony to select the jury for the trial of his case from an array or panel indifferently drawn or chosen as provided by law from the whole body of citizens, and not from a restricted number thereof, qualified to serve as jurors for such trial. Pollard v. State, 148 Ga. 447 (96 S. E. 997).

3. Accordingly, it was good cause of challenge to the array, in the trial of a murder case, that the judge of the superior court, who drew the regular jurors embraced in such array, did so by taking from an alphabetical and numerical list of all jurors in the traverse-jury box every tenth juror on said list, commencing with number eight, and thus drawing until the necessary number to make up the panel was drawn, and by locating the corresponding numbers' on the cards in said jury box and removing them therefrom.

4. The trial judge erred in overruling the challenge to the array, and this rendered nugatory the subsequent trial of the defendant.

Judgment reversed.

All Hie Justices concur.