Opinion
54195.
ARGUED JULY 11, 1977.
DECIDED SEPTEMBER 6, 1977. REHEARING DENIED SEPTEMBER 26, 1977.
Drug violation. Clarke Superior Court. Before Judge Barrow.
Guy B. Scott, Jr., for appellant.
Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.
The defendant was convicted on two counts of violation of the Georgia Controlled Substances Act.
1. In his first enumeration of error, defendant contends that his constitutional rights were violated when one prospective juror, in response to a question by the trial judge during voir dire, stated that she had been in a psychiatric hospital and had seen what drugs had done to people, and that she would be too biased. This exchange occurred in the presence of all of the prospective jurors. The juror was disqualified and the trial judge then asked if any other jurors felt that there was any bias or prejudice in their minds either for or against the defendant. No one answered. No objection was interposed nor was there any challenge to the array (see Code Ann. § 59-803), and the case proceeded to trial. The question now before us is, were the rest of the prospective jurors tainted by the expressions of the disqualified juror? We hold that they were not and that no reversible error was committed by the trial court in this connection.
In Coates v. State, 165 Ga. 191 ( 140 S.E. 287), a juror stated on voir dire, "`I have heard so much against the defendant that I am prejudiced...'" It was held that the court did not err in overruling the motion to disqualify the entire panel of 48 because of the reply of a member thereof to questions on voir dire.
The case of Williams v. State, 210 Ga. 665, 667 ( 82 S.E.2d 217) holds: "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 of 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 by this court."
In Young v. State, 232 Ga. 285, 286 ( 206 S.E.2d 439), our Supreme Court held: "The record reveals that appellant voiced this objection for the first time in his motion for a new trial. The procedure in this state has long required a criminal defendant to raise a challenge to the jury lists at the time the jury is `put upon him' or else he waives his right to object. See Williams v. State, 210 Ga. 665, 667 ( 82 S.E.2d 217) (1954); Hill v. Stynchcombe, 225 Ga. 122, 127 ( 166 S.E.2d 729) (1969). The legal policy upon which this salutary rule rests is that an accused cannot sit back and gamble upon the verdict and then, if dissatisfied, complain of the jury's selection process for the first time after he has been convicted. Appellant waited too late to complain of the jury composition in this case, and, even then, offered no evidence in support of the contention. See also Williams v. State, 232 Ga. 203."
In Fabian v. United States, 358 F.2d 187, 191 (8th Cir., 1966), the court stated: "Although there may have been prejudice here, appellants would have us reverse the convictions, and remand for a new trial on the assumption that the jury actually was so prejudiced that a fair trial was impossible. But the rule is otherwise — jury prejudice cannot be presumed, and appellants have the burden of showing its existence. Beck v. Washington, 369 U.S. 541, 558, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962)."
2. The second enumeration of error deals with the trial court's charge on entrapment and defendant argues that such charge was not justified under the evidence. The trial court exercised its discretion in determining that there was sufficient evidence or inferences drawn from the testimony to justify the charge. "The charge on entrapment here does not assume that the defendant is guilty, but only instructs the jury, if they find the act was in fact committed (which they might well do under the testimony) to consider whether this defense exists. Furthermore, there was some evidence elicited under cross examination to support the charge. It was not entirely inapplicable. If there is any evidence, even though very slight and consisting only of inferences drawn from the testimony, judgment should be affirmed. Harper v. Hall, 76 Ga. App. 441 (2) ( 46 S.E.2d 201)." Rushing v. State, 133 Ga. App. 434, 436 ( 211 S.E.2d 389).
Judgment affirmed. Quillian, P. J., and Banke, J., concur.