Smith v. State , 17 Ga. 462 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

It is our opinion that the Court erred in ordering final judgment upon this recognizance, for the following reasons: •

1. Because of the agreement between the Solicitor General and the Counsel for the prisoner, as it was understood by the latter. Such a misapprehension or mistake by Counsel has been recognized as a good ground for a new trial. It is not controverted but that the representation of the Counsel was made in good faith. All the facts show that there was no in-tension on the part of prisoner or his Counsel to evade a trial; and therefore, we think the Counsel was fairly entitled to the slight indulgence asked, or to have been put upon • some other reasonable terms before judgment was entered upon the scire facias.

2. Because the case was taken up out of its regular order. . It is said that this is an arrangement common in the Superior Court of Bibb County; that the pressure of business makes the practice expedient, by which the Solicitor General may call up any criminal cause at any period of the term, when he is ready to try; and that defendants must be held rigidly to this rule.

This practice may be expedient. We will not say it is not so. But it certainly is a very unequal one. Without disturbing it, we will now only say, that where such a practice does obtain, where this great advantage is given to the prosecuting officer for the State, there is certainly the more cause why a reasonable indulgence to the prisoner should be granted. Not why he should be indulged generally, or relieved from a rigid enforcement of the law; but a cause why he should have' accorded to him an indulgence reasonable and just, under the circumstances; and such, we think, was the character of that asked for here.

3. Because this defendant was surrendered before final judgment on the scire facias, as the bill of exceptions shows.

In this judgment, securities are interested; and their rights-are to be considered. We are all, as a Court, familiar with ■ the practice which allows a security, upon a recognizance, to discharge himself at any time before final judgment, by surrendering the prisoner and paying the costs of scire facias. We were of the opinion that there was some Statute on this subject, but have not been able to find it. The practice may be of Common Law origin. At all events, it is a reasonable ■practice — and a just one, as applicable to this particular case.

Let the judgment be revescd.