Collins v. Smith

• Citation: 67 S.E. 847,7 Ga. App. 653
• Decision Date: 19 April 1910
• Docket Number: (No. 2,356.)
• Parties: COLLINS v. SMITH, Governor.
• Court: Georgia Court of Appeals

67 S.E. 847

7 Ga. App. 653

COLLINS

v.SMITH, Governor.

(No. 2, 356.)

Court of Appeals of Georgia.

April 19, 1910.

(Syllabus by the Court.)

1. Bail (§ 77^*)—In Criminal Prosecutions— Proceedings for Forfeiture—Sufficiency of Scire Facias.

In a proceeding to forfeit a recognizance in a criminal case, it is not necessary that it be alleged in the scire facias that the case wascalled in its order on the docket, or that the state had announced ready for trial before forfeiture of the bond. If the case was called out of its order, or there was no such announcement, this would be a matter of affirmative defense.

[Ed. Note.—For other cases, see Bail, Dec. Dig. § 77.^2-*]

2. Bail (§ 74*) — Criminal Law (§ 576*) — Right to Speedy Trial—Discharge of Accused—Discharge of Sureties.

The court erred in striking the answer of

the surety to the scire facias.

(a) If, by reason of failure to try the defendant at the term succeeding that at which a demand for trial was entered, he is discharged, the appearance bond given by him becomes functus officio, and the surety is discharged.

(b) Failure to try the defendant at the term at which he demands trial, or at the next succeeding term (the necessary statutory requisites appearing), operates as a complete discharge and acquittal, whether an order discharging him be granted or not, unless the demand has been waived by some act of the defendant.

(c) The formal entry of discharge can be made at any time nunc pro tunc, and should be so made whenever the interest of justice requires.

[Ed. Note.—For other cases, see Bail, Cent. Dig. § 298; Dec. Dig. § 74;* Criminal Law, Cent. Dig. §§ 1297-1304; Dec. Dig. § 576.*]

Error from City Court of Camilla; J. H. Scaife, Judge.

Proceedings by Hoke Smith, Governor, against J. E. Collins to forfeit a recognizance. A demurrer to the scire facias was overruled, and the surety brings error. Reversed.

R. J. Bacon, for plaintiff in error.

Sam S. Bennet, for defendant in error.

RUSSELL, J. In response to the rule nisi calling upon Collins to show why a criminal recognizance on which he was surety for the appearance of one Holmes should not be forfeited, the surety demurred to the scire facias generally, upon the ground that the proceeding set forth no cause of action, and specially because the scire facias failed to show that the case of his principal, John Holmes, was called in its order on the docket, and that when it was so called the state was then and there ready for trial. The court overruled the demurrer, and exception is taken to this ruling.

1. We think the court properly overruled the demurrer. The general demurrer was ineffectual, unless the special demurrer was sustainable, and no amendment was made in conformity with the insistence of the special demurrer. The special demurrer was properly overruled, because the scire facias was drawn in accordance with the rules laid down for the forfeiture of recognizances. See Park v. State, 4 Ga. 333, and Spicer v. State, 9 Ga. 49 (3); also Van Epps' Form Book, 927. If, as a matter of fact, the ac cusation against the principal on the bond was called out of its order, and if the state failed to announce ready, this was a matter of affirmative defense, and should have been set up in the answer. The point could not be reached by demurrer, because, in the absence of any allegation upon the subject, it is to be presumed either that the criminal docket was called in its order, or, if the case against Holmes (the principal on the bond) was called out of its order, that the court did not permit the forfeiture, except upon an announcement on the part of the state of its readiness for trial. It is to be presumed that the case against the principal on the bond was called regularly. It is alleged that he was duly called. Cowart v. Page, 59 Ga. 235(1); Porter v. Holmes, 122 Ga. 780 (1), 50...