Quinlan v. State, 5144

5144 | Ga. Ct. App. | Oct 28, 1913

Pottle, J.

The evidence demanded the conviction of the accused. It is a violation of-Ahe-very -letter of section 448 of the Penal Code to engage in the sale of substitutes for intoxicants without having first obtained a license and paid the tax required by law. This being so, it is wholly immaterial what instructions were given to the jury.

The proper way to test the competency of an individual juror is by challenge, to the poll. The fact that the panel of jurors put upon the accused had previously tried a similar case did not authorize a challenge to the array. Each juror should have been challenged, put upon his voir dire, and his impartiality tested. Under the decision in Lewis v. State, 118 Ga. 803 (45 S.E. 602" court="Ga." date_filed="1903-10-24" href="https://app.midpage.ai/document/lupo-v-state-5572831?utm_source=webapp" opinion_id="5572831">45 S. E. 602), relied on by counsel for plaintiff in error, where proper challenge is made, it is the duty of the trial judge to frame appropriate questions and test the competency of the jurors. The record in the present ease discloses that the jurors were put upon their voir dire, and all of them qualified. The refusal of the court to sustain the challenge is not cause for a new trial. ■

Buie No. 5 of the superior court (Civil Code, § 6364) provides that if counsel for the accused in a. misdemeanor case will state in his place or on oath, as the judge may require, that he can not do justice to his client within the thirty minutes allowed by the rule, and state how much additional time will be necessary, “the court shall grant such extension of time as may seem reasonable and proper.” In Chance v. State, 97 Ga. 346 (23 S.E. 832" court="Ga." date_filed="1895-10-21" href="https://app.midpage.ai/document/chance-v-state-5566554?utm_source=webapp" opinion_id="5566554">23 S. E. 832), the judgment was reversed because the trial judge refused to allow counsel one hour within which to argue a misdemeanor case. See, also, Jones v. State, 123 Ga. 129, 131 (51 S.E. 312" court="Ga." date_filed="1905-06-13" href="https://app.midpage.ai/document/jones-v-state-5574303?utm_source=webapp" opinion_id="5574303">51 S. E. 312). Since the adoption of the code, and of course subsequently to these rulings, the rule has been amended by the substitution of the word “may” for “shall” in the reference to the extension of time; and the rule now contemplates that the court shall have some discretion in the matter. The evidence demanded the verdict. No amount of argument could have helped the accused. It will not be assumed that the jury would have been so swayed by the argument and eloquence of his counsel as to bring in a verdict in plain violation of law. There is nothing in the decisions of the Supreme Court to conflict with what we now rule, and there was certainly no abuse of discretion in refusing to grant the additional time. Judgment affirmed.