146 Ga. App. 83 | Ga. Ct. App. | 1978
Lead Opinion
1. Where a demand for trial is made by a criminal defendant at the term when the indictment against him was handed down for an offense not affecting his life reciting that there were jurors impaneled and qualified to try his case, and the judge enters an order reciting that the demand is true and is to be spread upon the minutes, it is conclusive by the terms of the order that there was in fact a jury impaneled and qualified to try the defendant. Where the defendant’s case is not called for trial at that term of court or the next term thereafter, the defendant on motion is entitled to be discharged. Bryning v. State, 86 Ga. App. 35 (5, 7) (70 SE2d 779); Denny v. State, 6 Ga. 491 (1849).
The defendant here was indicted at the December, 1975, term of the Superior Court of Chatham County for one offense and at the July, 1976, term for two others. No further action was taken in the matter. On March 4,1977
2. It is true that in Bryning, supra, the facts of the case were shown by a stipulation whereas here there is a stipulation augmented by testimony. We do not find that this makes any difference, or that it matters that in the present case the demands were made at the second and third terms of court after the return of the indictment and in Bryning at the first term, since the same result accrues when the demand under Code § 27-1901 is made by special permission of the court. In both cases, then, an indictment was ripe for trial. In both cases the civil and criminal juries had been dismissed when the demand was made. (Here the demand was made on the last day of the term; in Bryning it was made three weekdays before the term adjourned). In both cases the term was so nearly over that there would probably not be opportunity to summon and impanel another jury to try the case. Bryning holds that under these circumstances the defendant has made a proper demand for trial, has not been tried at the term at which the demand was made or the next succeeding term, and is entitled to acquittal, regardless of the fact that the jury had been excused prior to the date on which the demand was made, allowed and filed.
Bryning is exactly on point and will be followed by this court. The state relies on Jordan v. State, 18 Ga. 532, and DeKrasner v. State, 54 Ga. App. 41 (187 SE 402), for the general proposition that if there is no jury impaneled and qualified at the time the demand is made, the demand is not good for that term. Bryning does not deal with that proposition at all; it holds that where the motion itself recites that there is in fact a jury impaneled and qualified
Further, the reason for the rule is well illustrated by the present case. This defendant was accused under three indictments. At the time of his discharge one of the cases was in its sixth term without trial and the others were in the fifth. It is exactly this situation which the law seeks to avoid.
The judgment discharging the defendant is affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent because I feel a general misconception of Code § 27-1901 pervades the bench and bar. The transcript in this case supports my contention.
A normal reading of this section of the Code produces an impression that the first demand for trial may effectively be filed at any time during the term so long as there were juries impaneled and qualified to try the defendant at any time during the term, even if such juries were present only prior to filing of the demand. Stripped of
On the motion for discharge under Code § 27-1901 in the instant case, it was incumbent upon the appellee, not the state, to show by competent evidence that juries were impaneled and qualified to try him at the time his demand for trial was filed. He failed to carry this burden on the hearing, and for this reason alone this case should be reversed. Woodall v. State, 25 Ga. App. 8 (102 SE 913) (1920).
Appellee contends Bryning v. State, 86 Ga. App. 35 (70 SE2d 779), is controlling and that there is no material difference between Bryning and the instant case. A careful reading of Bryning shows a very material difference. When counsel for the defendant, in Bryning, presented his demand to the judge, ". . . counsel for the defendants inquired if at that time the petit jury for the March term, 1950, of said court had been discharged, and was then and there advised by the judge that the petit jury had been excused subject to be recalled if necessary, and that it was never his custom to discharge his juries for the term.” (Emphasis supplied.) In Bryning there were juries impaneled subject only to recall by the judge. Therefore, the demand could have been met at that term if the judge
Finally, the appellee contends that regardless of the absence or presence of juries at the time the demand was made, the order of the judge entered on the demand for trial is conclusive and cannot be questioned and cites Bryning.
In the instant case, it is clear that there were no juries qualified and impaneled to try the defendant when the demand was filed as they had been excused for the term two days before the demand was filed. The demand should not have recited the availability of juries, and the judge should not have been induced to sign an ex parte order that did not speak the truth.
Code § 38-114 provides "Presumptions of law are sometimes conclusive, and an averment to the contrary shall not be allowed. These are termed estoppels, and are not generally favored. Among these are the presumptions in favor of a record or judgment unreversed; of the proper conduct of courts and judicial officers acting within their legitimate sphere; of other officers of the law, after the lapse of time has rendered it dangerous to open the investigation of their acts in regard to mere formalities of the law; of ancient deeds, and other instruments more than 30 years old. ..” The order of the trial judge entered on the demand was only a few months old, and such lapse of time certainly would not have rendered it dangerous to open an investigation as to the truth of the order on the demand for trial. Moreover, it is clear that before the judge signed the order he heard no evidence and did not make a judicial determination; therefore, such order was not conclusive and could have been rebutted by competent evidence. Touchton v. Stewart, 229 Ga. 303 (190 SE2d 912) (1972). Hence, the trial judge erred in ruling that as a matter of law the demand was timely filed and the defendant was entitled to an order of discharge. I would reverse.
Furthermore, that portion of Headnote 5 of Bryning v. State, 86 Ga. App. 35, supra, that holds the terms of the
