Smith v. State

Full title: SMITH v. THE STATE

Court: Court of Appeals of Georgia

Date published: Jun 25, 1970

122 Ga. App. 98 (Ga. Ct. App. 1970)

176 S.E.2d 284

Opinion

45378.

SUBMITTED JUNE 8, 1970.

DECIDED JUNE 25, 1970.

Burglary; possessing burglary tools. Polk Superior Court. Before Judge Winn.

Hester Hester, Frank B. Hester, Richard M. Hester, for appellant.

John T. Perren, District Attorney, for appellee.

HALL, Presiding Judge.

Defendant appeals from convictions for burglary and possessing burglary tools.

1. Defendant contends the trial, conviction and sentence under the second charge are nullities as the jury was neither questioned on void dire nor sworn to try the defendant for possessing burglary tools. (The oath given to the jury recited that defendant was charged with the offense of burglary). Defendant's acquiescence to the deviation until after verdict was a waiver of objection. Smith v. State, 63 Ga. 168 (9); Lindsey v. State, 111 Ga. 833 ( 36 S.E. 62). Only a totally unsworn jury is a nullity. Slaughter v. State, 100 Ga. 323 ( 28 S.E. 159).

2. Under the present law of Georgia, it is not error to submit to the same jury the determination of guilt or innocence and the sentence. Cummings v. State, 226 Ga. 46 ( 172 S.E.2d 395); Haney v. State, 226 Ga. 52 ( 172 S.E.2d 592).

Judgment affirmed. Deen and Evans, JJ., concur.

SUBMITTED JUNE 8, 1970 — DECIDED JUNE 25, 1970.