Nix v. State

• Citation: 63 S.E. 926,5 Ga.App. 835
• Decision Date: 16 March 1909
• Docket Number: 1,690.
• Parties: NIX v. STATE.
• Court: United States Court of Appeals (Georgia)

63 S.E. 926

5 Ga.App. 835

NIX v. STATE.

No. 1,690.

Court of Appeals of Georgia

March 16, 1909

Syllabus by the Court.

When a demand is entered in a criminal case either as a matter of right or by special permission of the court, the state is bound to try the accused at the term when the demand is entered or at the next succeeding term. Trial or discharge are the only two alternatives.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 1294; Dec. Dig. § 575. ^[*]]

The term succeeding that at which the demand is granted by the court is the next regular term as fixed by law, and, though that term may be adjourned over until some time other than that fixed for the regular term, still a defendant's right to discharge cannot be defeated by adjourning one regular term into another regular term.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 1297; Dec. Dig. § 576. ^[*]]

Error from City Court of Albany; D. F. Crosland, Judge.

Edward Nix was convicted of crime, and brings error. Reversed.

R. J Bacon, for plaintiff in error.

John D Pope, Sol, for the State.

RUSSELL J.

The defendant was indicted at the October term, 1908, of the superior court of Dougherty county, and duly entered a demand for trial at that term in conformity to the defendant's right under the provisions of section 958, Pen. Code 1895. During that term he was twice tried. Each trial resulted in a mistrial, and during the same term the case was transferred to the city court of Albany. Of course, the demand accompanied the indictment. The November term, 1908, of the city court of Albany, was the next succeeding term, and under the ruling in Dublin v. State, 126 Ga. 580, 55 S.E. 487, it was necessary that the defendant should either be tried or discharged and acquitted during that term, unless the defendant waived his demand by affirmative consent to the passing of the case to a subsequent term. Walker v. State, 89 Ga. 482, 15 S.E. 553. Instead of waiving his demand, it is certified in the bill of exceptions that the defendant affirmatively insisted on a trial at the November term after he had been tried at that term and a mistrial had again resulted. No reason appears why the defendant was not again tried in the city court of Albany at the November term after the first trial had resulted in a mistrial.

The insistence is maintained in the brief of the learned counsel for defendant in error that the entire panel of 24 jurors, 12 of whom had heard the case and were therefore disqualified, and perhaps the remaining 12. who had remained in the courthouse and heard the testimony, were also disqualified. We see no force in this proposition because it was in the power of the trial judge to summon jurors to fill the panel and take the place of any or all of the regular jury who might be disqualified. It could not be known how many of the jurors who had not tried the case would have been disqualified until the court inquired into that question. But even if all of them, as is likely, were disqualified, the court still had the power to fill the panel and to try the defendant at the time at which, under his demand, he was entitled to be tried. Even if, as intimated by Judge Bleckley in Brown v. State, 85 Ga. 716, 11 S.E. 831, in reference to the conflict between the cases of Geiger v. State, 25 Ga. 667, and Little v. State, 54 Ga. 24, "a persistent disagreement of the jury up to the time when the term of the court would expire by operation of law" would be "equivalent to inevitable accident or providential cause," still the record does not show that this was the case in the present instance. So far as the record discloses, there was no obstacle in the way of trying the defendant again at the November term, except the difficulty and expense of obtaining another jury. What is said by Judge Bleckley on the subject of providential cause and inevitable accident is, however, mere obiter because he declined to reconcile the Geiger and Little Cases, supra, and placed his decision on another point.

We unhesitatingly hold that section 958, Pen. Code 1895, confers a right upon the defendant in aid of the constitutional guaranty of speedy trial, which does not admit of an implied exception. This view is sustained by the decision in the Geiger Case, and the decision in that case must control all subsequent decisions until it is expressly overruled. In the Geiger Case the defendant had entered his demand at the first term, as Nix did in the present case, and the trial judge refused to discharge him at the next succeeding term, upon the ground that he had been granted all the trial in the power of the court to give him, the jury having made a mistrial at both terms of the court, and that at neither time was the court bound to grant him any further trial. Each time the judge dismissed the juries before finding a verdict. The Supreme Court reversed the judgment of the judge of the lower court upon the express ground that "the record does not disclose any cause for ordering a mistrial at either term of the court. This court has held that the court may ordinarily at its discretion, direct a mistrial. A case in which the defendant has a statutory right to a trial, however, forms an exception. ... The provision of the statute was intended to secure to defendants a speedy trial, and confers on them a right which the court can neither control nor withhold." If inevitable accident or providential cause were made an exception to the statute, it would be by unwarranted judicial construction; and so far no step has been taken in that direction other than in mere intimation by obiter. Section 958, Pen. Code 1895, provides 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...