Valencia v. Roylston

PER CURIAM: This special action attacks the respondent court’s refusal to recognize a defendant’s challenge of a jury panel. Since appellate intervention by way of special action is appropriate here, we assume jurisdiction. Prior to his trial on a charge of unlawful transportation of marijuana, defendant-petitioner challenged the jury panel on the ground that it was not lawfully constituted, i. e., it had been impaneled on January 13, 1971 and had been sitting in other trials for approximately 9 months. His objection was overruled and the trial proceeded, resulting in a guilty verdict. The Supreme Court of this state in the case of Coca Cola Bottling Co. of Flagstaff v. Jones, 74 Ariz. 393, 250 P.2d 586 (1952) held that “if jurors have served, or been upon call for service, for a period of four months from the date they first report for duty, and thereafter a case in' which a jury has been demanded is called for trial, the superior court must order the drawing of a new venire.” (74 Ariz. at 396, 250 P.2d at 588). It reversed the judgment, finding prejudicial error in denial of a challenge to the jury panel since “the jury was not lawfully constituted.” (74 Ariz. at 397, 250 P.2d at 588). We believe that the Coca Cola decision is controlling here and the lower court erred in overruling the defendant’s objection to the jury panel. We therefore set aside the verdict and remand the cause for further proceedings not inconsistent herewith.