11 Ga. App. 37 | Ga. Ct. App. | 1912
1, 3. 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 have been made and allowed, and qualified juries impaneled; but, upon general principles, our courts have raised
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 the expiration of the first sentence. There may be cogent reasons why there should be a statutory suspension of the demand during imprisonment under sentence in a case previously tried, but the courts can not imply an exception not warranted by the language of the statute. In no fair, sense can it be said that the absence of the accused from court
We come, therefore, to the last point, which is the real ground upon which State’s counsel seeks to uphold the judgment of the trial court. There is no statute of this State which expressly authorizes the court to take into custody and put on trial a person already serving a sentence under an indictment upon which he has previously been tried. The General Assembly enacted a statute providing machinery for bringing a convict into court to testify as a witness, but it was expressly declared that the proceeding authorized by the act should be cumulative. Penal Code (1910), §§ 1180-1184. It can not be doubted that under the court’s inherent power, there is ample authority, irrespective of this statute, to procure the attendance of convicts as witnesses. At common law the writ of habeas corpus was used for this purpose, as well as to remove a prisoner from one jurisdiction to another, where his presence was needed. 3 Bl. Com. 130. When a convict is serving a penal sentence he is in the custody of the State or its authorities. In a sense he is the property of the State; his labor belongs to the State. Having forfeited his right to freedom, he is completely under the dominion and control of the State, with no rights save those which the law in its humanity may accord him. It would indeed be remarkable if the State, which has full power to reach out and bring into court one of its citizens while in the full enjoyment of his liberty, could not find a process by which one of its convicts could be brought into court for any purpose for which his presence could lawfully be required. We have not the slightest doubt of the full and complete power of the courts to adopt appropriate measures to obtain a convict’s presence in any proper case.
It seems to have been the rule at common law that where one was attainted of a felony, he could not be tried again for the same or any other felony, for the reason that by the attainder the prisoner became dead in law and had forfeited all he had, so that it would have been superfluous “to endeavor to attaint him a second time.” 4 Bl. Com. 337. But this doctrine is obviously
The courts of this State have power to adjudge that one sentence shall begin at the expiration of another, previously imposed at the same term. Here the prisoner was serving a misdemeanor sentence. If he had been tried for the felony and convicted, the court would have had power to provide that the sentence in the felony case should begin at the expiration of the misdemeanor sentence. Whether any part of the latter sentence imposed at a previous term could have been extinguished by being merged into the felony sentence, we need not inquire, but at any rate such a merger would afford the prisoner no ground for complaint.
The accused was serving a sentence imposed by the judge of the court in which the felony indictment was pending. Both the court and the prosecuting attorney were bound to know of this sentence. The attorney for the accused was under no duty to call the court’s attention to the fact of his imprisonment. It was the duty of the court to send for him and put him on trial. In addition to this it appears, from the agreed statement of facts, that the convict was in court as a witness during the term. This was sufficient notice to the court and the solicitor that he was confined in the chain-gang, even if such notice were necessary; and, as the State had full power to put the accused on trial, the failure to do so operated absolutely to discharge him from the felony indictment. This conclusion clearly results from previous decisions of the Supreme Court as well as of this court. Judgment reversed.