Bailey v. State

Undercofler, Presiding Justice.

James Greg Bailey, Jr., a/k/a Craig Bailey, was convicted of the crime of armed robbery and sentenced to serve five years in prison. He appeals to this court. Held:

Code § 59-805 provides: "Every person indicted for a crime or offense which may subject him to death or imprisonment in the penitentiary for not less than four years may peremptorily challenge 20 of the jurors impaneled to try him, and every person indicted for an offense which may subject him to imprisonment in the penitentiary for any time less than four years may peremptorily challenge 12 of the jurors impaneled to try him; and the State shall be allowed one-half the number of peremptory challenges allowed to the prisoner.”

The sole enumeration of error complains of the ruling of the trial court in refusing to allow the appellant 20 peremptory challenges to the jury. The ruling of the court was made after the appellant had used 12 peremptory strikes. The state waived the death penalty. Therefore the punishment for armed robbery in this case was life imprisonment or imprisonment for not less than one nor more than 20 years. Code Ann. § 26-1902 (Ga. L. 1968, pp. 1249, 1298; 1969, p. 810).

Since this statute allows the appellant 20 peremptory challenges for a crime involving death or imprisonment in the penitentiary for not less than four years, the trial court erred in denying him 20 peremptory challenges. "The maximum time of imprisonment in the penitentiary for a particular charge determines the number of peremptory challenges allowed . . .” Harvey v. State, 128 Ga. App. 844 (1) (198 SE2d 323); Lowe v. State, 133 Ga. App. 420.

Submitted December 13, 1974 — Decided January 7, 1975. Vaughn, Barksdale & Nation, Sidney L. Nation, for appellant. Richard Bell, District Attorney, Randy Peek, Assistant District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Deputy Assistant Attorney General, for appellee.

Judgment reversed.

All the Justices concur. Hill, J., not participating.