33 Ga. 403 | Ga. | 1863
Jenkins, J., delivering the opinion.
The first, second and third grounds of the motion for a new trial were abandoned in the argument.
The fifth (newly discovered evidence) was properly overruled by the Court below, the evidence being merely cumulative.
The fourth alone remains to be considered, viz:
“That the verdict was rendered by only eleven jurors, one of the twelve empanelled being incompetent and disqualified by the laws of the State, he being over sixty years of age, which fact was unknown to the prisoner and his counsel until after the trial and rendition of the verdict.”
The decisions of this Court, referred to in the Act of December 9, 1858, and in section 210 of the Code, are its conclusions of law upon the facts presented by the record in each case, and not opinions upon facts dehors the record. They do not, therefore, require us, in this case, either to follow the opinion in Cohron vs. The State, or to overrule the case.
The prisoner may fairly presume, in the absence of any knowledge or information, that the State has empanelled and preseuts to him only qualified jurors. If he chance to know the contrary of any juror, it is his duty to make it known when he is presented; otherwise, he will be held to have consented to waive the disqualification, and will not after verdict be permitted to retract his waiver. But if the juror be accepted by the prisoner in ignorance of the disqualification, the error was committed by the State in offering him, and its consequences should not be visited upon the accused.
Upon this ground, therefore, we reverse the judgment of the Court below, and order that a new trial be had.
Let the judgment be reversed.