Bishop v. State
| Decision Date | 02 July 1912 |
| Docket Number | (No. 4,178.) |
| Citation | 75 S.E. 165,11 Ga.App. 296 |
| Parties | BISHOP . v. STATE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
1. Criminal Law (§ 1023*)—Appeal—Dismissal.
Where the only assignment of error in a bill of exceptions brought to the Court of Appeals is upon the refusal to allow a demand for trial in a criminal case, no question is presented which the reviewing court can determine, and the writ of error will be dismissed.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. § 1023.*]
(Additional Syllabus by Editorial Staff.)
2. Criminal Law (§ 576*)—Trial—Refusal of Demand—Discharge.
Where a demand for a criminal trial has been regularly made, and two regular terms of court are thereafter held, and accused is not placed on trial, His discharge results automatically, provided qualified juries were impaneled, and the failure to try is not due to the voluntary absence of accused, or to some other conduct on the part of himself or counsel.
[Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 1297-1304; Dec. Dig. § 576.*]
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Harry Bishop was convicted of burglary. Conviction was set aside, and new trial ordered. From an order refusing a demand for trial, defendant brings error. Dismissed.
Maddox, McCamy & Shumate and Geo. G. Glenn, all of Dalton, for plaintiff in error.
T. C. Milner, Sol. Gen., of Cartersville, and Geo. W. Stevens, of Atlanta, for the State.
The accused was indicted for burglary. On June 8, 1910, his demand for trial was allowed and entered of record. On December 5, 1910, he was convicted, and on April 11, 1911, the conviction was set aside by the Court of Appeals and a new trial ordered, upon the ground that the evidence, resting solely upon the testimony of an accomplice, was not legally sufficient to support the verdict. Bishop v. State, 9 Ga. App. 205, 70 S. E. 976. At the July term, 1911, at the October term, 1911, and at the January term, 1912, the case was continued upon motion of the state, over the objection of the accused, who was present in court at each of the three terms, demanding a trial. At the January term, 1912, exceptions pendente lite were duly certified and filed, complaining of the refusal of the trial court to "grant said demand [for trial] and allow the same to be entered of record." At the April term, 1912, the case was again called for trial, whereupon the accused announced ready, and moved that he either be tried or discharged and acquitted. At all of the terms above specified juries were regularly impaneled and qualified to try the accused. It does not appear what disposition was made of the case after the April term, 1912.
The trial judge certifies that "there is no doubt of the guilt of movant, but as yet the state has not been able to get additional evidence sufficient to sustain a verdict of guilty under the ruling of the Court of Appeals, and, besides, movant is a 'dope fiend' and needs restraint." The bill of exceptions contains an assignment of error upon the exceptions pendente lite filed at the January term, 1912, but does not contain any exception to the refusal of the court to discharge the prisoner at the April term, 1912. A motion to dismiss the writ of error has been filed by the solicitor general, upon the ground that there is no exception to any final judgment, and that the case is still pending in the trial court.
There being no exception to the refusal of the court to discharge the accused, but only an exception to the refusal to grant a demand for trial, there is no exception either to a final judgment or to a judgment which would have been final if rendered as claimed. The question sought to be made is therefore not regularly...
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