Cain v. State

• Decision Date: 15 November 1897
• Citation: 102 Ga. 610,29 S.E. 426
• Parties: CAIN . v. STATE.
• Court: Georgia Supreme Court

29 S.E. 426

102 Ga. 610

CAIN .

v.STATE.

Supreme Court of Georgia.

Nov. 15, 1897.

Criminal Law—Waiver op Jury Trial.

1. Where the trial of a criminal case, in a city court, had been repeatedly postponed at the instance of the state, because of the absence of an indispensable witness, the accused, on every occasion when the case was called, announcing ready for trial, he should not, when the attendance of this witness was at length obtained, have been deprived of his right to withdraw a waiver of trial by jury previously made, it not appearing that the motion to withdraw such waiver was made merely for delay, or that granting it would have resulted in a further postponement of the case, in order to obtain a jury to try the same.

2. This case, upon its facts, does not materially differ from those of Brown v. State, 15 S. E. 462, 89 Ga. 340, and Butler v. State, 23 S. E. 822, 97 Ga. 404, and is controlled by the decisions therein rendered.

(Syllabus by the Court.)

' Error from city court of Macon; 3. P. Ross, Judge.

Thomas Cain was convicted of a crime, and brings error. Reversed.

M. G. Bayne and L. J. Spinks, for plaintiff in error.

Robt. Hodges, Sol. Gen., for the State.

FISH, J.. 1, 2. The sole question to be considered in this case is whether the court below erred in refusing to permit the plaintiff in error to withdraw his waiver of trial by jury, under the circumstances as set forth In the reporter's statement. The right of trial by jury in criminal prosecutions is a great constitutional right, of which the accused cannot be deprived except of his own accord. While he may voluntarily waive it, yet he may revoke such waiver by making timely application therefor. This right of revocation must be exercised in such season as not substantially to delay or impede the cause of justice. In Brown's Case, 89 Ga. 340, 15 S. E. 462, It washeld that the only restriction upon this right of revocation is that it be exercised In due and reasonable time, and to the same effect is the ruling in Butler's Case, 97 Ga. 404, 23 S. E. 822. The record in the case at bar does not disclose any effort on the part of the accused to delay a trial. On the contrary, It appears that he never at any time asked for a continuance. The case was continued, upon three different occasions, at the instance of the state, the accused announcing ready for trial each time. If the motion of the accused to withdraw his waiver had been granted, It does not appear that any delay or postponement of...