
    Rhodes v. The State.
    Submitted March 20,
    — Decided March 24, 1905.
    Indictment for riot. Before Judge Hodges. City court of Hartwell. January 16, 1905.
    
      A. G. & Julian McOwrry, for plaintiff in error.
    
      James H. Shelton, solicitor, contra.
   Candler, J.

1. One who, without objection, allows a witness to go on the stand and give evidence against him without being first sworn can not, after conviction, urge the failure of the witness to take the oath, as a ground of a motion for a new trial. Knowledge of the failure to swear the witness is necessarily imputable to the accused; for the oath must have been administered, if at all, in open court and in the presence of the accused. Smith v. State, 81 Ga. 480.

2 It was not error to refuse to grant a new trial on the ground of the alleged disqualification of one of the jurors who tried the case ; for even if the juror was disqualified by reason of the facts alleged, it was not shown that these facts were unknown to the accused or his counsel at the time of the trial. Phillips v. Brown, post; Edwards v. State, 121 Ga. 590.

3. The evidence was conflicting, but that for the State was sufficient to support the conviction of the accused.

Judgment affirmed.

All the Justices concur.  