Cain v. State , 102 Ga. 610 ( 1897 )

Fish, J.

The sole question to be considered in this case is, whether the court below erred in refusing to permit the plaintiff in error to withdraw his waiver of trial by jury, under the circumstances as set forth in the reporter’s statement. The right of trial by jury in criminal prosecutions is a great constitutional right of which the accused can not be deprived except of his own accord. While he may voluntarily waive it, yet he may revoke such waiver by making timely application therefor. This right of revocation must be exercised in such season as-not substantially to delay or impede the cause of justice. In Brown’s case, 89 Ga. 340, it was held, that the only restriction upon this right of revocation is that it be exercised in due and reasonable time; and to the same effect is the ruling in Butler’s-case, 97 Ga. 404. The record in the case at bar does not disclose any effort on. the part of the accused to delay "a trial. On the contrary, it appears that he never at any time asked for a continuance. The case was continued upon three different occasions at the instance of the State, the accused announcing ready for trial each time. If the motion of the accused to withdraw his waiver had been granted, it does not appear that any delay or postponement of the trial of the case would have resulted, because there is nothing in the record showing that there was not a jury present when the motion was made, by whom he could have been immediately tried. This case therefore, upon its facts not materially differing from those of Brown and Butler, supra, is controlled by the decisions therein rendered ;■ and the court below erred in refusing to allow the accused to-withdraw his waiver of trial by jury.

Judgment reversed.

All the Justices concurring.