Thornton v. State
| Decision Date | 12 May 1910 |
| Docket Number | 2,595. |
| Citation | 67 S.E. 1055,7 Ga.App. 752 |
| Parties | THORNTON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
If a defendant in a criminal case demands trial in accordance with the statutory method, and he is not tried at the term of the court when he makes the demand, or at the next succeeding term, his discharge and acquittal takes place by operation of law, provided that "at both terms there were juries impaneled and qualified to try him." Pen. Code 1895, § 958. It is a matter of regularity that the record in the case be completed by the court's entering the fact of the discharge upon the minutes by formal order, but the discharge is effective whether the order is ever entered or not.
The defendant who has made a formal demand and had it spread upon the minutes may thereafter waive his right to insist upon it but it is not incumbent upon him to take further active steps to bring the case to trial, and he does not waive it by remaining silent, and not calling the attention of the court to the matter thereafter.
(Additional Syllabus by Editorial Staff.)
Pen Code 1895, § 958, giving an accused the right to demand a trial, was enacted in obedience to the constitutional guaranty of a speedy trial to citizens charged with crime and must be fairly construed to accomplish that end.
Error from City Court of Dublin; K. J. Hawkins, Judge.
Raleigh Thornton was convicted of crime, and brings error. Reversed.
Hal B. Wimberly, for plaintiff in error.
W. C. Davis, Sol., for the State.
At the December term, 1908, of a city court, the defendant made a demand for trial, which was regularly entered upon the minutes of the court by the order of the judge. The March, June, and September terms, 1909, passed without any action being taken, though there were juries sworn and impaneled qualified to try the case at those terms. At the December term, 1909, the prosecuting attorney called the case and forfeited the defendant's appearance bond. At the March term, 1910, the defendant's counsel moved a formal order of discharge, praying that it be entered nunc pro tunc as of the March term, 1909; and it appears that the defendant was not in court when this motion was made. The court refused to grant the order.
State's counsel insists in this court upon two reasons why the order should not have been granted. He concedes that the demand was regularly made, and that the defendant was present at the term when the demand was made and at the next succeeding term, and that juries were impaneled and qualified to try him, but he says that the defendant by letting the case be continued by the state-- by not taking any affirmative action in the matter--by not insisting upon his discharge being entered upon the minutes had thereby waived it. The point is not well taken; indeed, it is practically controlled by the decision of this court in the case of Collins v. Smith Governor, 7 Ga.App. --, 67 S.E. 847. When a defendant in accordance with the statutory method makes his demand, and it is spread upon the minutes, and the state neglects or refuses to try him at the term when the demand is made, or at the next succeeding term, the defendant's discharge takes place by operation of law, provided that at both terms there are present in court juries impaneled qualified to try the case. In order to complete the record and to have permanent evidence of the fact that the matters upon which the demand is based have...
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