Cochran vs. The State of Georgia

Supreme Court of Georgia1879-02

62 Ga. 731

Summary · law.co

Holding. The judgment is reversed and a new trial is ordered because the trial court failed to comply with the mandatory statutory requirement to present the jury panel to the defendant, particularly where the defendant expressly declined to waive this right.

A defendant was convicted in a capital case, but a critical procedural requirement was not followed at trial. Georgia law mandates that in cases where conviction could result in death or penitentiary imprisonment, the court must present the jury panel to the defendant so he can exercise his right to challenge jurors. The defendant's counsel expressly stated that he was not waiving this right, yet the trial court proceeded without formally putting the array upon the accused as the statute requires.

The court emphasized that legal procedures are not mere formalities but essential safeguards that bind both the state and the courts themselves. The statute's language is mandatory and leaves no room for judicial discretion or implied waiver. The state cannot execute its sovereign power—including the power to impose capital punishment—except in the manner prescribed by law. Because this procedural requirement was violated despite the defendant's explicit objection, the conviction cannot stand.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a trial court may omit the mandatory procedure of presenting the jury array to a defendant in a capital case
Whether a defendant's right to challenge the array can be waived implicitly or only by express statement
Whether procedural requirements in criminal trials are mandatory or discretionary
The relationship between statutory form and the substance of due process in capital cases

Procedural posture

The defendant appealed a conviction in a capital case on the grounds that the trial court failed to comply with statutory procedures requiring the jury panel to be formally presented to the accused before trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bleckley, Justice.

“ When any person shall stand indicted for any offense which upon conviction may subject him to the punishment of death, or to imprisonment in the penitentiary, it shall be the duty of the court to have impaneled forty-eight jurors, twenty-four of whom shall be taken from the two panels of poefcit jurors, from which to select the jury for the trial of such offense; and in the event the jury cannot be made up of such panel of forty-eight, the court shall continue to furnish panels, consisting of such numbers of jurors as the court, in its discretion, may think proper, until a jury is obtained.” Code, §3935. “ The clerk shall make out three lists of each panel, and furnish one to the prosecuting counsel, and one to the counsel for the defense. The clerk shall then call over the panel, and it shall be immediately put upon the accused.” Ib. §4679. “ The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled, or ought not to be put upon him, the sufficiency of which challenge the court shall determine at once.” Ib., §4680. And see 1 Chit. Cr. Law, 532, Those who are impatient with the forms of law ought to reflect that it is through form that all organization is reached. Matter without form is chaos; power without form is anarchy. The state, were it to disregard forms, would not be a government, but a mob. Its action would not be administration, but violence. The pubic authority has a formal embodiment in the state, and when t moves, it moves as it has said by its laws it will move. It proceeds orderly, and according to pre established regulations. The state, though sovereign, cannot act upon the citizen in a different manner from that which the laws have ordained. It cannot inflict capital punishment without first trying the prisoner according to law. There is no dispensing power. Courts have none. Courts are bound by the law no less than the prisoner at the bar. The statute which requires each panel to be put upon the prisoner is imperative, mandatory. No court has a right to disregard it. The words are plain, and there is no reason why they should not be obeyed, and none why any waiver should be called for or assumed. Certainly none can be assumed in face of a timely warning by the prisoner or his counsel that he waives nothing. If the requirement of the statute needed vindication, we might insist that putting the array upon the prisoner is not mere form, but is of the substance of the proceedings. It is the ancient mode of commanding his attention to the personel of the panel, and of warning him to exercise the right of challenge. But it is enough that the statute leaves no discretion, declaring, as it does, that the panel “ shall be immediately put upon the accused.” Where is any authority of láw for hanging a man who expressly declines to waive his rights or any of them, without complying with this requisition % Why try him at all, if he is not to be tried as the law prescribes ?

The other grounds of the motion for a new trial were properly overruled. We differ with the presiding judge only as to the point we have discussed. On that alone1 a new trial is ordered.

’ Judgment reversed.