Opinion
24374.
ARGUED NOVEMBER 13, 1967.
DECIDED FEBRUARY 16, 1968.
Murder. Jones Superior Court. Before Judge Carpenter.
George L. Jackson, for appellant.
George D. Lawrence, Solicitor General, Arthur K. Bolton, Attorney General, Marion O. Gordon, Mathew Robins, Assistant Attorneys General, Joel Williams, for appellee.
1. A defendant in a criminal case may not successfully for the first time by a plea in abatement filed after an indictment has been returned against him, challenge the make-up of the grand jury which indicted him on grounds that it was illegally constituted, unless he shows that he had no knowledge of the illegality prior to the indictment. He must present any objections he has to the grand jury by a proper challenge to the array before the indictment is found.
2. A party may not impeach a witness called in his behalf unless a proper foundation is first laid authorizing the impeachment of the witness. So, where, as in this case, no such foundation was laid, and where it further appears that the testimony upon which the solicitor general relied for the purpose of impeaching a witness called on behalf of the State was not in any way prejudicial to the State's case, it was error for the court to allow the solicitor general, over a proper and timely objection of counsel for the defendant, to impeach a witness called by him. Rickerson v. State, 106 Ga. 391 (1) ( 33 S.E. 639); Nathan v. State, 131 Ga. 48 (3) ( 61 S.E. 994); Beach v. State, 138 Ga. 265 (3) ( 75 S.E. 139).
3. Where the trial judge promptly instructed the jury not to consider alleged improper remarks of counsel and not to consider improper evidence volunteered by a witness for the State, his refusal to grant the defendant's motions for a mistrial in each instance, not being, under the circumstances of the case, an abuse of discretion, will not be controlled. Patterson v. State, 124 Ga. 408 (1) ( 52 S.E. 534); Manchester v. State, 171 Ga. 121, 132 (7) ( 155 S.E. 11); Powell v. State, 179 Ga. 401 (4) ( 176 S.E. 29); Stanford v. State, 201 Ga. 173, 186 (2) ( 38 S.E.2d 823); Eden v. State, 43 Ga. App. 414 (1) ( 159 S.E. 134); Southeastern Greyhound Lines, Inc. v. Hancock, 71 Ga. App. 471, 473 (4) ( 31 S.E.2d 59).
4. Where evidence, objected to as being irrelevant, is admitted on statements of the solicitor general to the effect that its relevancy will be made to appear from other evidence to be offered later in the trial, it is incumbent upon the objecting party to make a later motion to rule it out if not connected up, and where no such later motion is made, its admission will not be cause for reversal. Stone v. State, 118 Ga. 705, 716 (8) ( 45 S.E. 630, 98 ASR 145); Jordan v. State, 150 Ga. 79 (2) ( 102 S.E. 424); Wood v. Lovelady, 176 Ga. 866, 873 (3) ( 169 S.E. 93); Black v. State, 187 Ga. 136 (2) ( 199 S.E. 810).
5. Evidence that the defendant was intoxicated when arrested some 3 1/2 hours after the shooting was properly admitted since all the circumstances connected with the arrest are proper evidence to be submitted to the jury. Wynne v. State, 56 Ga. 113, 119 (5); Robinson v. State, 130 Ga. 361, 362 (3) ( 60 S.E. 1005); McClung v. State, 206 Ga. 421, 422 (1) ( 57 S.E.2d 559); Mulligan v. State, 18 Ga. App. 464 (12) ( 89 S.E. 541).
6. Certain discharged shotgun shells were sufficiently identified to authorize their admission in evidence. McKibben v. State, 187 Ga. 651 (2) ( 2 S.E.2d 101).
7. The argument of the solicitor general to the jury as complained of in the twelfth enumeration of error did not introduce any new fact not in the record, and the trial judge did not abuse his discretion in refusing to order a mistrial on account thereof. Taylor v. State, 121 Ga. 348, 354 ( 49 S.E. 303); Manchester v. State, 171 Ga. 121 ( 155 S.E. 11); Powell v. State, 179 Ga. 401, 411 (4), supra; Pelham Havana R. Co. v. Elliott, 11 Ga. App. 621 ( 75 S.E. 1062).
8. Since the evidence may not be the same on another trial, the grounds of the enumeration of error relating to the sufficiency of the evidence to support the verdict will not be passed on.
ARGUED NOVEMBER 13, 1967 — DECIDED FEBRUARY 16, 1968.
Alton Woodrow Wooten was convicted with a recommendation of mercy of the murder of Henry Lee Thomas, Sr. From that conviction he appealed to this court and has enumerated fourteen grounds of alleged error. The headnotes announce the decision of the court with respect to those grounds of enumerated error which we deem it necessary to decide. Only the first of the headnotes requires elaboration here.
The indictment in this case was returned on April 17, 1967. On March 30, 1967, the governor had signed House Bill No. 307 amending Code § 59-106 so as to require a revision of the jury list of the various counties by the jury commissioners and to provide for the selection of the jurors from a representative cross section of the upright and intelligent citizens of the county whose names appear on the official registered voters' list used in the last preceding general election rather than those appearing on the books of the tax receiver. Ga. L. 1967, p. 251. Before his arraignment on the 19th day of April, 1967, the defendant filed a written plea in abatement in which he contended that the grand jury which indicted him was illegally constituted, in that it was made up of jurors taken from the tax digest rather than from the list of registered voters, as required by the 1967 amendment above referred to. The trial court overruled that plea and that judgment is excepted to in the first ground of enumerated error.
One who knows that his activities will be investigated by the grand jury of a particular county, and who knows that such investigation may result in the grand jury returning an indictment charging him with the commission of a felony, and who contends that the grand jury is illegally constituted for any reason, must present any objections which he has to the make-up of the grand jury by a proper challenge to the array of the grand jurors before the indictment is found. So, where, as in this case, after the indictment has been returned, and upon the call of the case for trial, the defendant, before pleading to the merits of the case, files a plea in abatement challenging the indictment on grounds of illegality in the composition of the grand jury, he must show by such plea in abatement that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned, before such a plea may be entertained. Turner v. State, 78 Ga. 174 (1); Folds v. State, 123 Ga. 167, 168 (2) ( 51 S.E. 305); Tucker v. State, 135 Ga. 79 (1) ( 68 S.E. 786); Lumpkin v. State, 152 Ga. 229, 231 (7) ( 109 S.E. 664). Accordingly, the plea in abatement in this case by which the defendant contended that the indictment returned against him on April 17, 1967, was void because the grand jury returning the same was chosen from the tax digest of Jones County rather than from the voters' list of Jones County, as required by the Act approved March 30, 1967 (Ga. L. 1967, p. 251, et seq.) amending Code § 59-106, which plea in abatement was not filed until April 19, 1967, when the case was sounded for trial and which set forth therein no reason why the defendant could not have challenged the array of the grand jurors prior to the indictment was properly overruled.
Judgment reversed. All the Justices concur.