Denny v. The State Of Ga.

• Decision Date: 31 March 1849
• Docket Number: No. 68.,68.
• Citation: 6 Ga. 491
• Parties: Ehood Denny, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

6 Ga. 491

Ehood Denny, plaintiff in error. vs. The State of Georgia, defendant.

No. 68.

Supreme Court of the State of Georgia

MARCH TERM, 1849.

Motion decided by Judge Wright, in Lumpkin Superior Court, March Term, 1849.

At the March Term, 1847, of Lumpkin Superior Court, an indictment was found against the plaintiff in error, Ehood Denny, for cheating and swindling. At the March Term, 1848, a demand was entered on the minutes for a trial on behalf of the defendant, and an order passed, that "he be tried at the next term, or be discharged." At September Term, 1848, no entry was made on the minutes or the docket. At March Term, 1849, when the case was called, Denny announced himself ready for trial, and the Solicitor-General having refused to put him on his trial, the counsel for Denny moved to discharge him, under the order taken at March Term, 1848. The Court overruled the motion, and this decision is alleged to be erroneous.

T. R. R. Cobb, representing W. Martin, for plaintiff in error.

J. Milner. for defendant.

By the Court.—Nisbet, J., delivering the opinion.

We are very clear that the defendant in this case was entitled to a discharge. The 18th section of the 14th division of the Penal Code, is in the following words: "Any person against whom a true bill of indictment is found, for an offence not affecting his or her life, may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, which demand shall be placed upon the minutes of the Court; and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter—provided, that at both terms there were Juries impannelled and qualified to try such prisoner—then he or she shall be absolutely discharged and acquitted of the offence charged in the indictment." Prince, 661.

This is another of those safeguards which the Legislature has wisely thrown around the citizen charged with an offence against the laws; the object of which is, to prevent vexatious delays: to limit the unequal power of the State over the prisoner, and to compel, in his behalf, an early trial. Its humanity and if equityno one will question. The powers of the Crown in criminal trials, were formely, in England, absolutely despotic. The Courts of Justice seemed to be organized rather to execute than to try the accused. Not so now in England. We, by divers benignant acts, of which this is one, have effectually guarded against the long delays of the law, and the caprice or the despotism of the State. This law puts it in the power of the accused to compel a trial, as early as the second term of the Court after the bill is found, in cases not capital; and if not then, at the term after he may choose to demand a trial—subject to one condition only, and that is, that both at the term when the demand is made, and at the term thereafter, there are Juries impannelled and quallified to try him.

In this case the bill was found at March Term, 1847. At the second term thereafter, the demand for a trial was made and entered on the minutes, and an order passed, that the defendant be tried at the next term, or discharged. At the term immediately succeeding the demand, nothing appears to have been done in the case, and at March Term, 1849, the State not being ready for a trial, the defendant moved for a discharge, which was refused. Upon what ground it was refused the record does not disclose. Counsel for the State insisted that the refusal was proper: First, because the demand was not made either at the first or second term after the bill was found. Their construction of the law is, that inasmuch as it allows the demand to be made at the first and second terms, it disallows it at any and all terms thereafter. This is not the true construction. Criminal Statutes are to be constured liberally in favor of the accused. There is nothing in the Statute which expressly excludes the right of demand at any term. Nor is the right denied by implication. The language of the law is not mandatory, but permissive. It declares, that the defendant may demand a trial at the first and second terms. It is true, that the word may, may be construed as leaving the defendant at his option to demand or not; but it is also significant of a right to do at the first or second term, that which before, was either questionable or denied. In favor of the accused, the 1ater is the reasonable meaning. Without denying his right to demand a trial at any subsequent term, the Legislature has authorized it, at the first and second term. The provisions of our Penal Code in relation to this matter, appear to be in lieu of the English practice, rela-tive to notice by the defendant of his intention to proceed to trial. There, after a traverse, the defendant may give notice to the prosecutor, of his intention to proceed to trial; and if, upon service of the notice, the party prosecuting, being three times called in open Court, does not appear at the session at which he is notified to appear and prosecute, the defendant is entitled to an acquital. 1 Chitty\'s Crim. Law, 397, 398.

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