Flagg v. State

• Decision Date: 02 April 1912
• Docket Number: 4,054.
• Citation: 74 S.E. 562,11 Ga.App. 37
• Parties: FLAGG v. STATE.
• Court: Georgia Court of Appeals

74 S.E. 562

11 Ga.App. 37

FLAGG v. STATE.

No. 4,054.

Court of Appeals of Georgia

April 2, 1912

Syllabus by the Court.

Where demand for trial in a criminal case for an offense not affecting life is regularly allowed, the failure of the state to place the accused on trial at either the first or the second term after the demand is made operates as an absolute acquittal and discharge, provided qualified juries are impaneled at both terms, unless the accused has done some affirmative act which in law would amount to a waiver of his demand. Mere silence at the second term, and failure to bring the fact of the demand to the court's attention, will not amount to a waiver.

Voluntary absence from court will operate as a waiver of the demand but involuntary absence at the second term, caused by confinement in the county chain gang under a misdemeanor sentence imposed at the first term, is not within the exception of the statute.

Absence of the accused at the third term, after the failure to comply with the demand has entitled the accused to an acquittal, is no reason for refusing to sustain a motion, made at that term by his counsel, to complete the record by granting an order of discharge.

The courts of this state have inherent power to cause the production in court of a convict serving a penal sentence in the state penitentiary or county chain gang, whenever his presence is needed for a lawful purpose.

The rule of the common law that one attainted of a felony could not be tried again for another felony has never been of force in this state.

The fact that one is serving a misdemeanor sentence in a county chain gang constitutes no reason why he cannot be brought to trial and sentenced under an indictment or accusation charging another offense.

The plaintiff in error was entitled to his discharge, and an order to that effect should have been entered.

Error from Superior Court, Baldwin County; J. B. Park, Judge.

Gid Flagg was indicted for assault with intent to murder. To an order refusing to discharge him, on account of failure of the state to put him on trial at the second term after a demand for trial had been allowed, he brings error. Reversed.

Erwin Sibley, for plaintiff in error.

Jos. E Pottle, Sol. Gen., for the State.

POTTLE J.

1, 2. The Constitution of this state guarantees to one accused of crime a speedy trial, and in aid of this guaranty our statute allows him to make demand for trial for an offense "not affecting his life," and requires that, unless a trial be had at the first or second term after demand, the prisoner shall be discharged, provided that at both terms there are juries regularly impaneled and qualified to try him. Penal Code 1910, § 983. Under the statute the only prerequisite to a discharge after the second term is that demand shall be made and allowed, and qualified juries be impaneled; but upon general principles, our courts have raised another exception, namely, that the failure to try be not due to the voluntary act of the prisoner, as, for instance, voluntary absence from court, or obtaining a postponement to another term, and the like. In all such cases the prisoner will be held to have waived his demand. It has been said many times that, unless the demand be waived by some affirmative act of the prisoner, the only alternative is trial or acquittal by discharge. Nix v. State, 5 Ga.App. 835, 63 S.E. 926; Collins v. Smith, 7 Ga.App. 653, 67 S.E. 847; Thornton v. State, 7 Ga. App, 752, 67 S.E. 1055; Dublin v. State, 126 Ga. 581, 55 S.E. 487, and citations; Walker v. State, 89 Ga. 482, 15 S.E. 553.

It is not incumbent upon the accused or his counsel to make any further motion or demand at the second term. They may sit mute. The demand having been regularly and lawfully made, the accused may thenceforward rely upon his right to a discharge if the state fails to comply by the end of the second term with the demand already made; the only duty imposed upon him being that he be not voluntarily absent from the court, and that he have done no other act which in law would amount to a waiver of his demand. No formal order of discharge is necessary. Acquittal results automatically by operation of law after the adjournment of the second term. Thornton v. State, supra.

3. From this it necessarily results (and it was expressly so decided in the case just cited) that the absence of the accused after the second term, when his counsel moves for a completion of the record by an order of discharge and acquittal, is no reason for refusing to grant the order.

4-7. The judgment of the trial judge in the present case must be sustained, if at all, either upon the theory that the accused was absent by his own fault, and the state was not bound to procure his presence, or upon the ground that, being in the custody of the county chain gang authorities, serving another sentence, the court was without power to compel his attendance, put him upon trial, and impose sentence in another case, until after...