Wells v. State

Simmons, C. J.

Jones, Phillips and Wells were jointly indicted for a misdemeanor. Jones was tried first, and was convicted. In the statement he made on his trial he implicated AVells as being concerned in the larceny. The larceny was proved, we presume, by other testimony also. AVhen Wells was arraigned, the same jurors who had tried the case against Jones were put upon AVells as part of the panel of twenty-four from which were to be selected the jurors by whom he was to be tried. Counsel for AVells challenged each of these jurors who had sat upon Jones’s case, on the ground that they had formed and expressed an opinion, and were therefore not impartial jurors; and requested the court to put them upon their voir dire, that their impartiality might he determined. This the court refused to do.

Under our constitution, every person accused of an offense against the laws of this State is entitled, when he demands it, to be tried by an impartial jury. If he believes or has reason to believe that one or any number of the panel put upon him is biased or prejudiced against him or is not impartial, he has the right to have the juror or jurors tested, if he makes the request properly and before the jury is sworn. When the challenge to the poll is thus made, it is the duty of the court to put the juror upon his voir dire and to ask him such questions as will test his fairness and impartiality. He may ask him, or cause him to be asked by counsel, the statutory questions prescribed for use in the trial of felonies, or such other questions as will test his impartiality between the State and the accused. In the case of Schnell v. State, 92 Ga. 459, relied upon by the State's counsel to sustain the ruling of the court below, there is nothing which conflicts with the ruling in this case. In that case it did not appear, as it does in this, that the challenge was made before the jury was sworn, and the challenge there was to the array instead of to the poll. And this court held that “if the matter of the challenge was good at all, it would not set aside the panel, but would be available only by challenges to the polls.” It further held: “In trials for misdemeanors there is no right to examine a juror upon his voir dire without first challenging him and assigning a cause of challenge. This must be done before the juror is sworn, unless the cause of challenge be unknown till afterwards.” In the present case the challenge was not to the array, but to the poll, and was made before the jury was sworn, a good cause of challenge being assigned. We think, therefore, that the court erred in not putting the challenged jurors upon their voir dire and allowing their impartiality to be tested. See Smith v. State, 63 Ga. 168 (8); Cobb v. State, 45 Ga. 11; Schnell v. State, supra.

Judgment reversed.

All the Justices concurring.