Graham v. State

1 Ga. App. 682 | Ga. Ct. App. | 1907

Powell, J.

The constitution of this State guarantees to every person accused of 'crime a speedy trial. To make this guarantee effective the legislature has provided (Penal Code, §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 or^er, 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 granting 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. State, 28 Ga. 64; Moore v. State, 63 Ga. 165. If as a matter of fact the minutes fail to speak the truth, in that they do not show the order actually passed allowing a demand, the coxtrt has the power to correct them and supply the omission. “Every court has power . . to amend its own records, so as to make them conform to the truth.” Civil Code, §4047. “As a general rule the court will amend the entries of its orders on the minutes, . . nunc pro tunc, . . in all cases where such amendment will clearly be in furtherance of justice.” Civil Code, §5119. Of course, if no order has been taken, even though the failure to take it was due to an erroneous refusal of the court to allow it, the minutes should not after-wards be corrected to make them speak an untruth, and show, as taken, an order not granted. Couch v. State, supra; Moore v. State, supra. A judgment is no less a judgment because the clerk has failed to record it. Davis v. Barker, 1 Ga. 559; Bridges v. Thomas, 50 Ga. 381; Gross v. Mims, 63 Ga. 563. The judge should have granted the motion to correct the minutes, by requiring the entry of the order allowing the demand to be recorded nunc pro tunc, unless some principle of justice forbade it. Indeed, the eases just cited seem to declare it to be the duty of the court to direct the correction as a matter of course, if the fact of the actual granting of the order sought to be incorporated be proved or conceded, and to protect those whose interests would otherwise be prejudiced by the failure to record at the proper time, by limiting the effect to be given to the order as so entered.

In either event, the facts of this case justified the demand of the defendant for a correction of the minutes. The failure of the clerk to record the order was not occasioned by his neglect, but in all probability by the fact that the State’s representative, the solicitor, took and kept the order in his possession. The chief object .in requiring the order allowing the demand to be placed upon the minutes is that the prosecuting officer may have due notice. Moore v. State, supra. In this ease the notice was actual; and the failure of the further notice which the record would have given was due to the fault of that very officer, and to no fault of the defendant. The court should therefore have corrected the minutes, and, upon their amendment, the discharge would have followed. The judgment is, therefore, Reversed.