SUBMITTED APRIL 11, 1966.
DECIDED APRIL 19, 1966. REHEARING DENIED MAY 5, 1966.
Murder. Mitchell Superior Court. Before Judge Lilly.
B. Clarence Mayfield, Morris Brown, for appellant.
Fred B. Hand, Jr., Solicitor General, Arthur K. Bolton, Attorney General, Rubye G. Jackson, Assistant Attorney General, for appellee.
This case has been previously reviewed by this court. Davis v. State, 216 Ga. 110 ( 114 S.E.2d 877). In the former case the judgment was affirmed. However, the United States Court of Appeals, Fifth Circuit, held that the application of appellant and Phil Whitus (jointly indicted with the appellant) for writ of habeas corpus in the United States District Court should have been granted, and remanded the case for further proceedings. Whitus v. Balkcom, 333 F.2d 496. The appellant was re-indicted and again convicted of murder without a recommendation of mercy. In his brief the appellant expressly abandons all enumerations of error originally filed in his appeal except the contention that the judgment overruling the challenge to the array of petit jurors was error. The issue here presented is in substance the same issue raised by enumeration five in Whitus v. State, ante, decided adversely to the appellant in that case in Division 5 of the opinion. Hence Whitus v. State, supra, and the cases therein cited, control in this decision.
Judgment affirmed. All the Justices concur.