O'Berry v. State , 153 Ga. 644 ( 1922 )

Atkinson, J.

The rulings announced in headnotes 1, 2, 4, 5, and 6 do not require elaboration.

Of the rulings announced in the headnotes, that embraced in the third is the only one that will be elaborated. As ruled in the first note, the decisions of. this court hold that “ relationship by blood or marriage within the ninth degree, calculated according to the rules of the civil law, between the prosecutor and a juror in a criminal case, will disqualify the juror.” It is declared in the Civil Code, § 3028: “ The mother of a bastard is entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal power.” In § 3029, it is declared: “ Bastards have no inheritable blood, except that given to them by express law. They may inherit from their mother, and from each other, children of the same mother, in the same manner as if legitimate. If a mother have both legitimate and illegitimate children, they shall inherit alike the estate of the mother. If a bastard dies leaving no issue or widow, his mother, brothers, and sisters shall inherit his estate equally. "In distributions under this law the children of a deceased bastard shall represent the deceased parent.” In § 3030, it is declared: “ If a bastard dies intestate, leaving no widow or lineal descendant, or illegitimate brother or sister, or descendant of a brother or sister, or mother, but shall leave a brother or sister of legitimate blood, such brother or sister, or descendant of such brother or sister, may inherit the estate of such intestate; but in default of any such person, the brothers and sisters of the mother of such bastard or their descendants, or the maternal grandparents of such bastard, may inherit the estate of such bastard, to be divided amongst said persons in accordance with the degrees of consanguinity prescribed in the laws for the distribution of other estates.” These provisions of the code have the force of statutes. Central of Georgia Railway Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518); Lee v. Rogers, 151 Ga. 838 (108 S. E. 371). They relate to private rights in respect to devolution of title on the basis of illegitimate blood or kinship, and for such purpose recognize such kinship as a relation. If such kinship is a relation for such purpose, there is all the more reason for recognizing it as a relation in dealing with the public matter of declaring the qualification of jurors, where one prime object is the obtainment of impartial' jurors. Illegitimacy alone does not disqualify a person from serving as a juror, but he and his relatives should be subject to the same restrictive rules that apply to others in the matter of selecting impartial jurors. The prohibited relation applicable to all persons is any relation within the ninth degree. Those related in the last are equally disqualified as those related in the first. If the mother or brother on the maternal side of the illegitimate were on trial for a crime or were a prosecutor, it is palpable that it would not be in furtherance of “ fair trials,” as guaranteed by the constitution, to allow the illegitimate to serve on the jury. Yet that result would be possible if such relationship were not recognized as a disqualifying cause. The relation traced through the illegitimate in this case was by blood on the maternal side, and connected the volunteer prosecutor with the juror in the ninth degree calculated according to the rules of the civil law.

Judgment reversed.

All the Justices concur.