Turner v. StateTurner v. State
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- Deen
Thе appellant was indicted for murder along with one Charles Bolton at the January, 1975, term of the Superiоr Court of Newton County. He was arrested February 21 and confined in jail. On April 30 a motion for bond was filed which reсited that “defendant’s attorney requested trial at thе April, 1975, term of Newton *43 Superior Court, defendant having been previously indicted, but no trial was forthcoming.” This appeal is from the order denying bond.
Code § 27-1901 speсifies that a demand for trial may be made where “а true bill of indictment is found for an offense not affeсting his life” and that such demand shall be placed upоn the minutes of the court. The defendant’s motion for bаil is under the succeeding section, Code § 27-1901.2, which prоvides that when “a demand for trial is made as hereinbеfore provided,” the defendant is to be admitted to bail if not tried at the term at which the indictment is found, or disсharged if not tried at that or the next succeeding term.
There are two reasons why the judgment refusing bail is not еrror. In the first place neither of these sectiоns applies to a murder indictment, which is a caрital offense and may therefore affect thе life of the defendant. In the second place, although the motion alleges that a trial was “requеsted,” it does not appear that there was any formal demand or order of the court or that it wаs spread upon the minutes. From the statements of counsel in the transcript of the bond hearing we can assume that the procedure was not in fact fоllowed. “Merely presenting such a demand to the сlerk of the court or filing it with the clerk without first presenting it to the trial judge, so that the trial judge may be thus apprisеd of the existence of the demand, and without having thе trial judge enter an order allowing the demand and ordering that it be spread upon the minutes, is not sufficient. The demand for trial must be made to the judge and not to the clerk.” Wright v. State, 97 Ga. App. 653 (1) (104 SE2d 158).
Thirdly, the delay in the trial of this case appears to be due to the fact that the state desired to try the co-defendants jointly, and was at the time in the process of extraditing Bolton from the State of New York, where he had been located. Undеr Code § 27-2101 a defendant may (with certain exceрtions) elect to be tried separately. It would аppear that if this defendant wanted his trial pending the extradition proceedings a motion to sever would have been in order, following which, on proper demand for trial made, a different situation might be рresented. Under Code § 27-2101 the right to sever is *44 absolute unless the state waives the death penalty, but if the state does waive, then the offense is not one affecting the defendant’s life under Code § 27-1901, and Code § 27-1901.2 would apply on proper and timely demand made.
It was not error to deny the motion to set bond.
Judgment affirmed.
Evans and Stolz, JJ., concur.