Winkle v. State

20 Ga. 666

• Court: Supreme Court of Georgia
• Decided: August 15, 1856
• Docket: No. 126
• Status: Published

Opinion

By the Court.

Benning, J.

delivering the opinion.

When persons jointly indebted have severed, and the State has elected to try one of them, and he continues his case, has the other a right to demand a trial ? This is the only question.

We think he has. The words of the Statutes, taken in their plain sense, give him the'right; and there is nothing an the Statute to show that in such case as his they ought not to be taken in their plain sense. (Cobb’s Dig. 836.)

It is true, that when joint defendants “sever,” the State has the right to elect which shall be first put on trial. But this can mean no more than if the State and all of the defendants are at the same time ready for trial, and the defendants sever and there is a disagreement between the State and the defendants, as to which of the defendants shall be tried first, then the State shall have the privilege of saying which of them shall be tried first. In case of severenee, some one . of the defendants has to be tried first; and when they are all pressing for trial at the same time, some body has to say which shall be the first, else a trial cannot take place. But this necessity exists only in cases in which the defendants, or more than one defendant, are at the same time pressing for trial.

This case was not of that sort. In this case, one of the defendants had continued the case, as to himself. There existed, therefore, no obstacle to the trial of the other defendant.

There is nothing in Studsill vs. The State adverse to this view. (7 Ga. R.)