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

November 8, 1906

Syllabus by the Court.

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.

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

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

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 indictment or presentment was found or at any subsequent term thereafter. This was the state of the law at the time the Code of 1863 went into effect. The eighteenth section of the Code of 1833 appears in that Code with some changes. Under the provisions of that Code the demand may be entered as a matter of right at the first or second term, and at any subsequent term by special permission of the court. Code 1863, § 4534. Such is the law at the present time. Pen. Code 1895, § 958.

It appears from the averments of the plea that a demand for trial was entered according to the terms of the Penal Code above referred to. As a matter of fact, it appears from the record that this demand was entered at the second term of the court; but this is immaterial, as, no matter at what term it was entered, if it was entered and allowed by the court, the accused is entitled to all of the rights accorded by the provisions of the statute. When the demand was entered, whether as a matter of right at the first or second term, or by special permission of the court at a subsequent term, the state, by...