Winter v. State , 18 Ga. 275 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Ought the judgment of forfeiture in this case have 'been set aside ? Wo think so, most clearly.

That Winter was prevented by Providential cause from attending Court, is not disputed ; and the only question is, has he rendered a satisfactory reason for not making his situation ¡known to the Court when his case was called for trial ?

He was informed by his Counsel, that the presiding Judge had announced publicly, from the Bench, that no criminal .case would be tried that week; and there is a large amount proof to show that Judge Crawford was so understood by the bar and the by-standers. True, the Judge states that his announcement was conditional, provided Judge Perkins attended according to promise, to preside for him. By this mistake, Mr. Moses, the Attorney of Winter, was absent. Had he been present, he could have made known the situation of Winter, for he was cognizant of it. Owing to the same mis.apprehension, Winter was lulled into security, and failed to furnish proof of his condition.

And now, that it appears that these facts, or most of them, 'were brought to the mind of the Court, not only before the .judgment of forfeiture was placed upon the minutes, but before, perhaps, the ink was dry in which it was written, (for the showing was made, in part, at least, on the same day that the order of forfeiture was granted,) we entertain no doubt but vfchat the judgment of forfeiture should have been rescinded.