Brown v. State , 28 Ga. 439 ( 1859 )

By the Court

Stephens, J.,

delivering the opinion.

The main question in this case is, whether or not a new trial ought to have been granted on account of the relationship of the juror, Bussell, to the prosecutor, the fact not being known to the accused, nor to his counsel, till after conviction. There is no question whether the relationship disqualifies the juror. That is conceded, but it is said there was no diligence used to find out the fact at the right time. It is said that the act of 1856, page 230 of the pamp’t, 1855 and 1856, provides a time when the accused may ascertain causes of disqualification, and if he fails to do so at that time, he fails in that diligence which would entitle him to a new trial. We do not think so.' A single view will show to what consequences such a notion of diligence would lead. There are other disqualifying causes, the imputation of which would be very offensive, such as idiocy or lunacy, or negro blood, and. there is the very same provision for ascertaining these causes at the very same stage of the proceedings. The provision is; that-objection mayhe made to a jui’or on any of these g'rounds. Now, to come up to the standard of diligence'claimed by the Solicitor Generali in this case, the accused would in every case have to object to every juror on all these grounds, idiocy and negro blood included, for if he should afterwards "find out that one of the jurors had negro blood, or was an idiot, he could, as iu the case of relationship, be answered that his time had passed. That is to say, the accused, in order to be duly diligent, must of necessity give offence to every j uror who is to try his life or liberty, a degree and energy of diligence which we cannot require. He must make the objection at the right time, if he knows the fact, but if he does not know the fact, nor have special reason to believe it, he is not bound to offend 'every man on the panel by making random imputations against him.

Judgment reversed.