Dublin v. State

• Decision Date: 08 November 1906
• Citation: 55 S.E. 487,126 Ga. 580
• Parties: DUBLIN . v. STATE.
• Court: Georgia Supreme Court

55 S.E. 487

126 Ga. 580

DUBLIN .

v.STATE.

Supreme Court of Georgia.

Nov. 8, 1906.

Criminal Law—Delay in Prosecution—Acquittal.

The accused was arraigned at the June term, 1906, of a city court, upon an accusation charging him with a misdemeanor. He interposed a special plea In bar, which averred that during the September term, 1905, a demand for trial was duly entered upon the minutes, but he was not tried during that term, although there was a jury impaneled and qualified to try him; that at the next succeeding term, to wit, the March term, 1906, he was present in court ready for trial, insisting on a trial, but was not tried; that there was a jury impaneled and qualified to try him at that term; that he moved for a discharge and acquittal, but the judge refused to grant it, upon the ground that there would be an adjourned term of the court at which he would be tried: that the adjourned term was not held, and the March term was finally adjourned on the third Monday in May. Held that, under the facts alleged in the special plea, the accused was entitled to an acquittal and a discharge, and it was error to strike the plea on demurrer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1297.]

(Syllabus by the Court.)

Error from City Court of Sylvester; Frank Park, Judge.

Porter Dublin was convicted of a misdemeanor, and brings error. Reversed.

The accused was arraigned in the city court of Sylvester, at the June term, 1906, upon an accusation charging him with a misdemeanor. He interposed a special plea in bar, the averments of which were, in substance, as follows: The accusation was pending in the city court at the September term,

1905, and during that term the accused in writing demanded a trial; the demand being in the terms of the statute. This demand was by order of the court placed upon the minutes. At that term there was a jury impaneled and qualified to try the accused, but he was not tried. At the next regular succeeding term, to wit, the March term,

1906, there was a jury impaneled and qualified to try' the' accused. The accused was present, ready for trial, and insisting on a trial, but was not tried. The March term began on the fourth Monday in March, was in daily session for about two weeks, and was then adjourned until the third Monday in May. The accused, through his counsel, stated to the presiding judge in open court that he insisted on a trial, calling attention to the demand above referred to. The judge refused to grant a discharge or allow a trial, stating that an adjourned term would be held, at which all cases in which demands had been made would be tried. The adjourned term was not in fact held, and the March term was finally adjourned on the third Monday In May. These facts are pleaded as reasons for an absolute discharge and acquittal of the offense charged in the accusation. Upon the special plea being filed, the judge passed the following order: "Upon reading of the plea and oral motion to discharge the defendant, the same is hereby overruled." The accused excepted. The trial proceeded, and the accused was convicted. In his bill of exceptions he assigns error upon the ruling above referred to, upon the refusal to grant a new trial, and upon the overruling of a demurrer.

Payton & Hay, for plaintiff in error.

J. H. Tipton, Sol., for the State.

COBB, P. J. (after stating the foregoing facts). Both counsel for the state and for the accused, in their briefs, treat the order of the judge as in effect striking the plea upon demurrer, and we will so consider it. The eighteenth section of the fourteenth division of the Penal Code of 1833 provided that any person charged with an offense not capital might "demand a trial at the term when the indictment was found, or at the next succeeding term thereafter, " and that if a trial was not had at the term when the demand was made, or at the next succeeding term, the accused should be absolutely acquitted and discharged of the offense, provided that at both terms there were juries impaneled and qualified to try the accused. Cobb's Dig. p. 836. In Denny v. State, 6 Ga. 491, the section of the Penal Code above referred to was construed to authorize a demand for trial at the first, second, or any subsequent term. In Jordan v. State, 18 Ga. 532, Judge Lumpkin expressed a doubt as to whether the ruling in Denny's Case was a sound construction of the Code, either upon principle or policy. In Price v. State, 25 Ga. 133, it was held that a demand for trial must be made not later than the second term: the decision in Denny's Case being in terms overruled. In Watts v. State, 26 Ga. 231, the ruling in Price's Case was followed and approved. This decision was rendered in 1858. In 1859 (Acts 1859, p. 60) the General Assembly amended the eighteenth section of the Code of 1833, so as to authorize in terms a demand for trial to be entered at the term when the...