Moreland v. State

51 Ga. 192

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

McCay, Judge.

As a matter of course this section of the Code authorizing the defendant in a misdemeanor to demand a trial, and if not tried at the second term after such demand is put on the minutes, to demand his discharge, must be qualified so as not to give him his discharge when the failure to try is his own fault, and so this court has in effect ruled: 21 Georgia, 148. Whose fault was the failure here? When the criminal docket ■was called, the cáse against him was called and he did not appear. Prima facie, we think this put him in fault, and he had no legal right to insist on his demand after this. To give a defendant the right thus to play fast and loose with the court, to be absent at his pleasure when his case is called in its order, apd then speculate upon the occupation of the court until he sees it practically impossible to try him, and then and there insist upon his demand, would be to make a statute intended to prevent oppression a machine for defrauding the law. As we have said, we think when he failed to be present at the regular call of the court he lost his absolute right to be tried. If after this he can present a good excuse for his absence, apd the court has not, in the progress of business, got something else on hand that would make indulgence to a prisoner a public wrong, we think it would be the duty of the court to try him at his request, or at the pleasure of the court. But if he wait, as he did here, until the juries are discharged, we think common sense as well as any fair construction of this act, declares that he is too late. Juries are not then empanneled and qualified to try him. • This statute was not passed to enable criminals to escape, but to prevent innocent persons from being harassed by improper delay. We cannot but suspect that the defendant’s anxiety for a trial did not fully develope itself until he saw a trial was impossible, and his is not the first instance of men being very anxious for a fight ag soon as it is apparent that no fighting can possibly be done. There is nothing in the conversation with the solicitor general. He does not and ought not to control the business of the court.

Judgment affirmed.