Opinion
51795.
DECIDED MAY 3, 1978.
Obscenity. Fulton Criminal Court. Before Judge Tucker.
Gilbert H. Deitch, Michael Clutter, for appellant.
Hinson McAuliffe, Solicitor, Thomas R. Moran, Jr., Assistant Solicitor, Arthur K. Bolton, Attorney General, for appellee.
Five jurors aren't enough! There must be at least six. So held the Supreme Court of the United States in four separate opinions reversing this court's decision in Ballew v. State, 138 Ga. App. 530 ( 227 S.E.2d 65) (1976), ___ U.S. ___ ( 98 SC 1029, 55 L.Ed.2d 234) (1978).
In our consideration of the five-man jury issue, we were bound by Sanders v. State, 234 Ga. 586 ( 216 S.E.2d 838) (1975), cert. den., 424 U.S. 931 (1976). Also in Williams v. Florida, 399 U.S. 78, 91 n. 28 ( 90 SC 1893, 26 L.Ed.2d 446, 455) (1970) the Supreme Court of the United States had said: "We have no occasion in this case to determine what minimum number can still constitute a `jury,' but we do not doubt that six is above that minimum." The Supreme Court's decision now has removed that equivocation, and has established that a jury of fewer than six persons deprived Ballew of the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments.
By Act approved March 24, 1976, the number of jurors in the Criminal Court of Fulton County was changed from five to six. Ga. L. 1976, p. 3019.
Consequently, the judgment of this court stands reversed, the verdict and judgment of the trial court are reversed, and the case is remanded for further proceedings not inconsistent with the opinions of the Supreme Court.
Judgment of trial court reversed. Deen, P. J., and Quillian, P. J., concur.