There is no error in the judgment of the court below dismissing the extraordinary motion for new trial.
The plaintiff in error was tried and convicted of murder, without a recommendation of mercy, in the Superior Court of Fulton County on March 10, 1953. A motion for new trial was filed and duly overruled. That judgment was affirmed by this court. See Williams v. State, ante, p. 207 (78 S. E. 2d 521).
On December 1, 1953, the plaintiff in error filed his extraordinary motion for new trial. A motion for new trial was filed and duly overruled. this motion was set for hearing and duly continued until January 18, 1954. When the motion came on for a hearing, it was dismissed on motion of the solicitor-general. To this judgment the plaintiff in error excepted and assigns this judgment as error.
The extraordinary motion for new trial contains two grounds, both complaining that the defendant had been denied certain specified constitutional rights guaranteed him under stated provisions of the Constitution of the United States. Ground two has been expressly abandoned, and will not be considered. Ground one contends that, upon the trial of the defendant for murder in the Superior Court of Fulton County, he was denied equal protection of the laws in violation of section I of the Fourteenth Amendment to the Constitution of the United States (Code 1-815). This ground is long and sets out the process of selecting persons to serve as jury commissioners and persons to serve as jurors, and the empaneling of said jurors to serve in specific cases. The substance of the contention, however, that the defendant was denied equal protection of the laws was that, in the selection, drawing, summoning, organizing, empaneling, and challenging of the jury sworn to try him, he was discriminated against on account of his color.
Many methods and instances of discrimination against the defendant are related in ground one of the extraordinary motion. However, it is urged in this court that the defendant is entitled to a new trial because of the fact that the names of white traverse jurors were placed on white paper and that the names of colored traverse jurors were placed on yellow paper. It is urged that this is discriminatory, and that this practice made it possible to keep the number of Negroes summoned for jury service within the number of peremptory challenges allowed the State and thus enabled the State to keep Negroes from serving on the jury.
It appears from the record that four Negroes were on the panel of 48 put upon the defendant. Three of these were excused for cause. The fourth was called for service by the clerk and was perermtorily challenged by the State leaving no Negroes on the jury.
The other grounds of the motion need not be set out here, since they are not argued in this court. However, the decision here made will be decisive of all questions in the case, since all relate to the legality of the selection, drawing, summoning, organizing, and empaneling of the jury put upon the defendant.
1. The defendant is here attempting by extraordinary motion for new trial to challenge the legality of the jury put upon him in the instant case. He relies entirely upon the case of Avery v. State of Georgia, 345 U. S. 559 (73 Sup. Ct. 891), contending that that case is controlling in the instant case. We go not agree with this conclusion. In Avery v. State of Georgia, supra, the defendant, upon being arraigned for trial in Fulton County, filed a written challenge to the array of traverse jurors put upon him for reasons set out, among them that the names of white jurors were put upon white slips of paper and the names of colored jurors were put upon yellow paper. See Avery v. State of Georgia, supra, and Avery v. State, 209 Ga. 116
(70 S. E. 2d 716). In the instant case, no challenge to the array of traverse jurors was filed, and no question as to the legality of the jury was raised until after the denial of a motion for new trial had been affirmed by this court. See Williams v. State, ante, p. 207.
It is settled law in this State that, when a panel of jurors is put upon the prisoner, he should challenge the array for any cause which would go to show that it was not fairly and properly put upon him, and that if he fails to do so, the objection is waived and can not thereafter be made a ground on a motion for new trial. See Lumpkin v. State, 152 Ga. 229 (109 S. E. 664); Cornelious v. State, 193 Ga. 25 (17 S. E. 2d 156); Cumming v. State, 155 Ga. 346 (117 S. E. 378); Moon v. State, 68 Ga. 687; and Williams v. State, 31 Ga. App. 173 (120 S. E. 131). In the instant case, the defendant made no objection to the jury when the panel was put upon him, and made no objection until he filed this extraordinary motion for new trial after a new trial had been denied and that judgment affirmed is this court. See Williams v. State, ante. It follows, therefore, that the judgment of the court below dismissing the extraordinary motion for new trial was not error.
The defendant and his attorney state that they did not know of the facts set out in grounds one and two of the motion for new trial, and "that the same could not have been discovered by him in the exercise of ordinary diligence." This is not sufficient to excuse the defendant from the necessity of presenting his written challenge to the array of traverse jurors when the panel was put upon him. See, in this connection, Lumpkin v. State, supra; Cornelious v. State, supra; Redding v. State, 183 Ga. 704 (189 S. E. 514); Edge v. State, 200 Ga. 257 (36 S. E. 2d 673). It follows, under the decisions of this court above cited, it was not error to dismiss the extraordinary motion for new trial.
2. There is a further reason why the motion in the instant case is not sufficient as an extraordinary motion for new trial. The affidavit of the defendant states in part: "The defendant did not at the time of his trial . . . have any information concerning the selection, drawing, organizing, and empaneling of the jury panel put upon him on his trial, but assumed that the jury was a legal jury." the affidavit of the attorney representing the defendant states in part: "Deponent further says that he did not know of the facts set out in the first and second grounds of the extraordinary motion for new trial . . . before the trial and before the verdict in said case, and that the same could not have been discovered by him in the exercise of ordinary diligence." It has been held by this court that affidavits such as are attached to this motion and set out above are merely opinion, without sufficient facts being shown by which the court could judge whether due diligence had been exercised, and are not sufficient to support an extraordinary motion for new trial. Edge v. State, supra; Redding v. State, supra.
3. Defendant in his motion sets forth a practice which has been condemned by this court, and the Supreme Court of the United States. However, any question to be considered by this court must be raised at the time and in the manner required under the rules of law and practice and procedure in effect in this State. We can not simply overlook the rules made for the purpose of providing a fair and orderly procedure in the conduct of trials and other legal processes in this State and permit the defendant to stand negligently or purposefully by, taking his chances of an acquittal, and them, upon his conviction, and upon the denial of a new trial which is affirmed by this court, be heard to say that the panel of jurors put upon him was not fairly and properly selected and empaneled. When this defendant failed to raise this question when the panel was put upon him, he waived the question once and for all.
It follows, there was no error in dismissing the extraordinary motion for new trial.
Judgment affirmed. All the Justices concur.