Editor's note.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1869, p. 139, § 2; Code 1873, § 3911; Code 1882, § 3911; Penal Code 1910, § 823; Code 1933, § 59-203; and former O.C.G.A. § 15-12-62 are included in the annotations for this Code section.

Drawing jurors in open court constitutional.

- Fact that jurors must be drawn in open court is constitutional, i.e., it does not deprive the petitioner in a habeas corpus hearing of due process or equal protection of the laws. Hill v. Stynchcombe, 225 Ga. 122, 166 S.E.2d 729 (1969) (decided under former Code 1933, § 59-203).

Open court requirement is safeguard.

- Requirement that juries must be drawn in open court is a safeguard or guarantee against secret court proceedings; it is a procedure which enables the public to observe the conduct of the judge in drawing juries and thus prevent any possible corruption or suspicion of corruption in this vital part of the jury system. Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965) (decided under former Code 1933, § 59-203).

Compliance with open court requirement essential.

- Compliance with the requirement that juries must be drawn in open court is essential to the validity of the criminal prosecution. Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965) (decided under former Code 1933, § 59-203).

Procedures if judge has failed to draw jurors.

- Former Code 1933, §§ 59-205 and 59-702, relating to procedures when the judge has failed to draw jurors, does not require the drawing to be "at the close of each term, in open court," contained in the alternative method of drawing jurors provided in former Code 1933, § 59-203. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979) (decided under former Code 1933, § 59-203).

Provisions not exclusive.

- Provisions for selection of jurors at close of each term for service at the ensuing term are not exclusive as indicated by former Code 1933, § 59-713. Harrison v. State, 120 Ga. App. 812, 172 S.E.2d 328 (1969) (decided under former Code 1933, § 59-203).

"Close of term" means at end of regular term and does not include adjourned terms. Hoye v. State, 39 Ga. 718 (1869) (decided under Ga. L. 1869, p. 139, § 2); Finnegan v. State, 57 Ga. 427 (1876);(decided under Code 1873, § 3911).

Number of persons designated by the statute is directory and not mandatory on court. Turner v. State, 78 Ga. 174 (1886) (decided under former Code 1882, § 3911); Evans v. State, 17 Ga. App. 120, 86 S.E. 286 (1915);(decided under former Penal Code 1910, § 823).

Judge not authorized to reject juror for defect propter affectum.

- In drawing grand jurors according to this section, the judge is not authorized, upon information based in part on what the judge knows and derived in part from others, to reject jurors so drawn upon the ground that the jurors would be incompetent propter affectum to indict the person against whom a charge is preferred and is to be passed on by the grand jury. Heaton v. State, 167 Ga. 147, 144 S.E. 782 (1928) (decided under former Penal Code 1910, § 823).

Language, "or otherwise disqualified by law," means disqualification which renders it improper to put the name of a person in a grand-jury box and not a disqualification propter affectum. Heaton v. State, 38 Ga. App. 695, 145 S.E. 534 (1928) (decided under former Penal Code 1910, § 823).

Limits on use of plea in abatement.

- Defects in drawing of jury cannot be basis of plea in abatement if defendant could have objected before indictment. Tucker v. State, 135 Ga. 79, 68 S.E. 786 (1910) (decided under former Penal Code 1910, § 823); Kirksey v. State, 11 Ga. App. 142, 74 S.E. 902 (1912);(decided under former Penal Code 1910, § 823).

Waiver of challenge.

- Challenge to the array of the grand jury should be made before the indictment against the accused is found and returned into court by the grand jury; failure to make a timely objection to the grand jury amounts in law to a waiver of the right to do so. Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965) (decided under former Code 1933, § 59-203).

Presumption of proper selection.

- It will be presumed that the grand jury has been properly chosen and names have been available to the defendant in advance. Accordingly, failure to make a timely challenge to the competency of certain grand jurors must be considered as a waiver of any right of challenge. Simpson v. State, 100 Ga. App. 726, 112 S.E.2d 314 (1959) (decided under former Code 1933, § 59-203).

Drawing of jurors more than one month prior to adjournment.

- Fact that grand jurors were drawn during term more than one month prior to adjournment of term is not cause for quashing indictment. Haden v. State, 176 Ga. 304, 168 S.E. 272 (1933) (decided under former Code 1933, § 59-203).

Cited in Lynn v. State, 140 Ga. 387, 79 S.E. 29 (1913); Geer v. Bush, 146 Ga. 701, 92 S.E. 47 (1917); Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726 (1965); Hill v. Dutton, 440 F.2d 34 (5th Cir. 1971); Kenerly v. State, 311 Ga. App. 190, 715 S.E.2d 688 (2011).

Am. Jur. 2d.

- 38 Am. Jur. 2d, Grand Jury, §§ 8, 19, 21.

C.J.S.

- 38A C.J.S., Grand Juries, § 38 et seq.

ALR.

- Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.