Silvey v. State

• Decision Date: 02 December 1889
• Citation: 10 S.E. 591,84 Ga. 44
• Parties: SILVEY v. STATE.
• Court: Georgia Supreme Court

10 S.E. 591

84 Ga. 44

SILVEY v. STATE.

Supreme Court of Georgia

December 2, 1889

Error from superior court, Union county; WELLBORN, Judge.

R. P Lester and W. T. Day, for plaintiff in error.

Howard Thompson, Sol. Gen., for the State.

BLANDFORD J.

It appears that at the October term, 1887, of the superior court of Union county, the grand jury returned as true a bill of indictment against A. T. Silvey, charging him with a misdemeanor. At the April term, 1888, of said court, the accused made a demand for trial, in accordance with section 4648 of the Code. At the October term, 1888, he was put upon his trial, and was found guilty as charged in the bill of indictment. During said term he moved for a new trial, and a new trial was granted. Nothing more was done until the April term, 1889, of said court, when he moved the court to be discharged, upon the ground that he was not tried at the October term, 1888. The court overruled this motion, and he excepted, and insists that he should have had a legal trial at the October term, 1888, and, not having had such trial that he is thereby entitled to be discharged and acquitted of all offenses charged in said bill of indictment against him.

We do not think that there is any error on the part of the court in refusing to grant the order asked for by the plaintiff in error: for, by the terms of the section of the Code above referred to, (section 4648,) it is provided that "any person against whom a true bill of indictment is found, for an offense not affecting his or her 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; *** and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter, *** then he *** shall be absolutely discharged and acquitted of the offense charged in the indictment." It appears from the record that the accused was tried at the succeeding term after the demand was made, and he, not being satisfied with the verdict, moved for a new trial at the same term, which was awarded him. So it appears that the state is within the letter of the statute it not appearing that he made a demand at that term to be again tried. We do not think that he lost, by reason of such trial, the benefits which he was entitled to under the demand which he made, and that his case stood for trial...