Graham v. State

• Decision Date: 25 April 1907
• Docket Number: (No. 378.)
• Citation: 57 S.E. 1055,1 Ga.App. 682
• Parties: GRAHAM v. STATE.
• Court: Georgia Court of Appeals

57 S.E. 1055

1 Ga.App. 682

GRAHAM

v.STATE.

(No. 378.)

Court of Appeals of Georgia.

April 25, 1907.

Criminal Law—Demand fob Trial—Discharge of Defendant.

If a defendant, with leave of the court, expressed by formal order, has demanded a trial in accordance with the statute, and at the succeeding term it appears that by fault of the prosecuting officer, who had actual notice of the allowance of the demand, the same was not placed upon the minutes, the court should, upon motion, cause the same to be entered nunc pro tunc, and, if the state does not proceed to trial and the other statutory conditions are fulfilled, should discharge the defendant.

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

(Syllabus by the Court.)

Error from City Court of Cordele; Strozier, Judge.

One Graham was convicted of crime, and brings error. Reversed.

J. T. Hill, for plaintiff in error.

M. M. Bakes, Sol., for the State.

POWELL, J. The Constitution of this state guaranties to every person accused of crime a speedy trial. To make this guaranty effective the Legislature has provided (Pen. Code, 8 958) that "any person against whom a true bill of indictment is found, for an offense not affecting his life, may demand a trial at the term when the indictment is found; or at the next succeeding term thereafter, or at any subsequent term, by special permission of the court, 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, and at both terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment." In the case at bar, the defendant, having been indicted, and the indictment having been transferred to the county court of Crisp county, took an order, at the October term of that court, allowing a demand. This order was signed by both defendant's attorney and the trial judge. The solicitor of the county court, who was present and had actual notice of the grant ing of the order, took personal possession of the indictment upon which the order was written, and the clerk, to whom, it is conceded, defendant's attorney delivered it for record upon the minutes, thus failed to transcribe it. The county court of Crisp county was abolished by a legislative enactment, and its business transferred to the city court of Cordele. The county solicitor delivered the indictment and the order thereon to the solicitor of the city court, who retained possession of the same until the December term of the court. At that term of the court, the state announcing not ready to try, the defendant moved a discharge; and, upon its being discovered that the order allowing the demand had not been recorded upon the minutes, also moved that the same be entered nunc pro tunc. The court refused both motions, and the defendant brings error.

The statute requires that the demand be placed upon the minutes of the court; and, when a discharge is asked at the term subsequent to that at which the demand is allowed, it is from the minutes that the defendant must show the existence of his demand. Couch v....