Lamb v. State

73 Ga. 587 | Ga. | 1884

Jackson, Chief Justice.

The question made by this record is, whether, after one panel of the traverse jurors has been discharged for the term and all cases, including criminal cases, have been continued, the solicitor general can proceed to forfeit the recognizance and issue scire facias returnable to the next term, and then at that term have final judgment of forfeiture against the surety, the principal not appearing at either term.

1. Section 4702 of the Code declares that “no recognizances in criminal cases, called out of the regular order in which they appear on the docket, shall be forfeited for the non-appearance of the principal, unless the solicitor general or other prosecuting officer shall state in his place that the state is ready for trial.” This section relates to the first term at which steps are taken to the issuance of scire facias as well as to the final forfeiture. The proviso cited above, is in the acts of 1878-9, p. 57. The cases, this included, were all continued, and it must have been called out of its order. The solicitor general could not have been ready to try it, if defendant had been present, nor could the defendant have demanded a trial, for the reason that one-half of the traverse jurors — one whole panel — had been discharged for the term. The two panels were necessary to try the defendant. Code, §§3934, 4644, 4648, acts of 1869, p. 141.

2. The case had been continued and the. order for its continuance entered on the minutes. How, then, was it ready for trial ? The judge states that he intended the order “ to be entered on the minutes at the time of the adjournment, and for the purpose of disposing of cases that were not reached before adjournment;” but his statement on the bill of exceptions cannot correct thé record. In judgments and orders which appear of record, the record is the only evidence; in matters not of record, the judge’s certificate is the only evidence.

3. It does not affect the legal point that defendant was not present. The surety generally has the right to produce his principal when his case is ready for trial and palled at either term. If the panel had not been discharged, he might have produced him at the first term in this case; and that, in this recognizance, is his only obligation, it being not conditioned from term to term, but only to produce him at that first term. 65 Ga., 341.

The law applicable to sureties is construed strictly— strioti juris ; and in the present case, we cannot, so construing it, do otherwise than hold that the forfeiture of this recognizance was illegal.

Judgment reversed.