Blevins v. State
Decision Date | 11 March 1966 |
Docket Number | No. 41659,No. 2,41659,2 |
Parties | James M. BLEVINS v. The STATE |
Court | Georgia Court of Appeals |
Frank M. Gleason, Rossville, for appellant.
Earl B. Self, Sol. Gen., Bobby Lee Cook, Summerville, for appellee.
Syllabus Opinion by the Court
The defendant appeals from the judgment of the trial court refusing to allow his demand for trial or order it spread upon the minutes of the court.
On August 22, 1963, in the Superior Court of Walker County, the defendant was indicted separately for the murder of two persons, Orville Steele and Carolyn Newell. He made a motion for change of venue on each indictment, and the denial of those motions was finally affirmed by the appellate courts on February 10, 1964. Blevins v. State, 108 Ga.App. 738, 134 S.E.2d 496, certiorari denied by the Supreme Court of Georgia on February 10, 1964, Case No. 22375. On March 30, 1964, there was a pre-trial hearing before the trial court on the indictments. The defendant was then tried and convicted of the Newell murder and that conviction was reversed by the Supreme Court of Georgia. Blevins v. State, 220 Ga. 720, 141 S.E.2d 426. On re-trial the defendant was acquitted of the Newell murder on May 20, 1965. This appeal relates to the indictment for the Steele murder.
In Georgia a person accused of a capital offense has a right to be discharged and acquitted of the offense if he is not given a trial within two regular terms of court after the term at which he has filed a demand for trial as provided by statute. Ga.L.1952, p. 299, 300 (Code Ann. §§ 27-1901.1, 27-1901.2). The record shows that there were eight terms of the Walker Superior Court after the indictment was returned before the defendant sought to file his demand for trial, and that juries were empaneled at those terms. For the purposes of this opinion we will assume, but do not decide, that the time in which the defendant had an absolute right under the statute to make a demand for trial (the term at which the indictment was found or the next succeeding regular term thereafter) was extended until the determination on his motion for charge of venue was final. The record does not show that the defendant made a demand for trial after that final determination, on February 10, 1964, until August 23, 1965. During this period five terms of court elapsed. The extension of the time for filing the demand during the time the motion for change of venue was pending would not bring the defendant's demand made at the August term 1965 within the time provided by the statute.
We do not agree that the defendant's motion for change of venue is still pending under the rule applied in Blevins v. State, 108 Ga.App. 738, 134 S.E.2d 496, supra, that 'whether or not a fair and impartial jury can be obtained is in most instances a question that must await the trial of the case to be resolved.' By the decision on the previous appeal the trial court's denial of the motion for change of venue for trial of this indictment was affirmed. If at any time before the selection of a jury is completed it appears that a fair and impartial jury cannot be obtained, the defendant can then make or renew his motion for change of venue.
The defendant contends that at the pretrial hearing on May 20, 1965, before the defendant was tried for the Newell murder, the court made a statement which he considered to mean that, when the State made its election as to which of the...
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