Brown v. State

• Decision Date: 12 July 1890
• Parties: Brown. v. State.
• Court: Georgia Supreme Court

11 S.E. 831

85 Ga. 713

Brown.

v.State.

Supreme Court of Georgia.

July 12, 1890.

Criminal Law—Demand for Trial—Nolle Prosequi—Different Offense.

1. A judgment of the superior court denying a motion for an order discharging the accused because he was not tried pursuant to his demand for trial made and entered at a previous term of the court is, until reversed or set aside, conclusive both upon the motion itself and the insufficiency of the cause or grounds thereof.

2. The benefit of a demand for trial is not lost by reason of the entry of a nolle prosequi without the prisoner's consent, nor would it be lost by a mistrial on a new indictment for the same offense, followed by a rightful refusal to discharge the accused after the mistrial was declared. The demand would stand over to be complied With at the next term.

3. Though failure to comply with a demand for trial entitles the defendant to be dischargedand acquitted of the offense charged in the indictment pending when the demand was made and entered on the minutes, it does not entitle him to be discharged and acquitted of any other offense. An offense "nominally the same, but substantially different, " charged in an indictment found after the demand was made and entered, is not covered by the demand.

(Syllabus by the Court.)

Error from superior court, Hancock county; Ldmpkin, Judge.

T. M. Hunt and J. A. Harley, for plaintiff in error.

W. M. Howard, Sol. Gen., for the State.

Bleckley, C. J. 1. That the accused is not entitled to a discharge upon his motion therefor, made at the term when the mistrial was declared, or for any cause embraced in that motion, stands adjudged and determined by the judgment of the superior court rendered at that term, denying the motion. This judgment has never been reversed, and, whether erroneous or not, is conclusive upon the question decided. Consequently, there is no occasion now to construe and reconcile the cases of Geiger v. State, 25 Ga. 667, and Little v. State, 54 Ga. 24. We, however, do not see why, as a reason for declaring a mistrial, a persistent disagreement of the jury up to the moment when the term of the court would expire by operation of law would not be equivalent to inevitable accident or providential cause, within the meaning of the former case.

2. But the benefit of the original demand for trial would not be wholly lost by reason of the mistrial, followed by a rightful refusal to discharge the accused at the term when the mistrial occurred. The demand would stand over and be operative to secure a trial at the next term. This would probably be so even had the trial resulted in a verdict of guilty, and a new trial been granted on the prisoner's motion. An intimation to this effect was made in Silvey v. State, 84 Ga. 44, 10 S. E....