Cobb v. State , 45 Ga. 11 ( 1872 )

McCay, Judge.

It is not the policy of the law to try men for the violation of the law, by jurymen who have formed and expressed opinions from hearing the evidence as to their guilt or innocence. These two jurymen were clearly incompetent, and the fact of incompetency was not known until after the jury was fully stricken. Under the statute, giving the prisoner seven strikes and the State five from a panel of twenty-four, the prisoner has the first and the last two strikes. We think it was contrary to the spirit of the statute, to force the prisoner to recall his last two strikes, or to consent to be tried by the two grand jurymen. The best and safest course for both the State and the prisoner would have been to make out a new list, leaving off the incompetent men and filling their places by talesmen. And this is in harmony with the whole spirit of the criminal law. The jury, thus presented, ought to have been then restricken. It was only a question of time with the Court, and the principles of justice might surely demand that much.

2. We think the indictment good. The words “play or roll ” are evidently used as synonymous in the Act creating the offense, and do not describe different offenses. In the case of ten pins, play and roll are commonly used to describe the game; and, though not so frequently, used to describe the game of billiards, yet, sometimes this is the case, and it is not to be supposed that grave members of the Legislature are so familiar with the language used in the games they prohibit, as to use them with technical accuracy.

Judgment reversed.