State v. Harrison

Convicted of carnal knowledge of an unmarried woman under the age of 18 with her consent, the accused has appealed.

When his case was called for trial at 11 o’clock a. m., no jurors were at hand. Some were serving on two juries already impaneled, and the rest had been excused until 1 o’clock. Although, because of the absence of the jurors, defendant objected to going to trial, the judge required the case to be proceeded with. But after five names had been successively drawn from the venire box, and the five jurors successively called and failed to appear, the judge recessed over to 1 o’clock. Defendant then objected to the names which had been drawn from the venire box at 11 o’clock being put back therein.

[1] As the trial was not proceeded with at 11 o’clock, no harm was done defendant then; and, as a matter of course, the names which had then been taken out of the box had to be restored.

[2] After all the names in the venire box had been drawn, the discovery was made that, by inadvertence, the names of the jurors who had been serving on the two juries in the morning had not been put back into the box. This, however, was immediately *389done, and the drawing proceeded with, without objection on the part of accused. What would have been the legal situation, if objection had then and there been made, need not be considered, since, after accused had taken the chances of a favorable verdict, it was too late for him to make the objection, as he did by motion for new trial. Marr, Grim. Juris. 826.

Judgment affirmed.