Felix Frankfurter

“ First: There is also a rule in Georgia that an objection to an individual juror must be made at the trial by a challenge to the poll. [15] But as the cases above demonstrate, this rule gives way in an exceptional case to the need for a new trial shown by extraordinary motion. It does not appear rational to deny that the rule as to challenges to the array is likewise not inflexible. Second: The opinion of the Georgia Supreme Court in this case supports this conclusion. If the trial court had no power to entertain the motion, it was immaterial whether the affidavits were faulty. ”

“ The trial court denied the motion, but the appellate court granted a new trial. It said:
'* * * There is no higher purpose to be subserved in the administration of the criminal law than that every defendant shall be accorded a trial by jury, and jury trial is a mockery unless the jury be not only impartial, but also beyond just suspicion of partiality. ”

“ But none of these cases declare that an extraordinary motion is not available in a proper case for granting a new trial when the objection is to the panel. On the contrary, several factors indicate that the trial judge and the appellate court have the same degree of discretion in the 'array' cases as in cases involving individual jurors. ”