Horne v. State ( 1956 )

Gardner, P. J.

1. It will be noted that under the terms of the act of 1952 (Ga. L. 1952, p. 299, et seq.) special permission of the court must be obtained for the defendant, in a capital case, to enter a demand for trial after the expiration time of the indictment or the first term thereafter. Also the Code provides that the defendant must be present in court, announcing ready for trial and requesting trial of said indictment. It follows that in the instant case the judge did not err in his order unless the defendant “was present in court, announcing ready for trial and requesting a trial.” The record shows, as is conceded by the defendant in his brief, that the defendant was not present in court, but was at some unknown place in the custody of the United States Government. The record shows that the defendant had at one time been in the custody of the sheriff of the county of jurisdiction, but that he was later surrendered to a deputy United States marshal, and it was in such custody that we find the defendant on the day of the trial. It is true that no cases have been cited by counsel, nor have we been able to find any cases directly in point construing the act cited, codified as Code (Ann.) §§ 27-1901.1, 27-1901.2. However, it is our opinion that the language of the statute is clear on this point. The trial court properly denied demand for trial.

2. As to the point made by counsel that juries must be impaneled and qualified in order to try the defendant, the record is silent as to whether or not juries were impaneled and qualified. The record does show unverified demand and motion for acquittal. This point was covered in Roebuck v. State, 57 Ga. 154 (3). This point made by this contention of counsel would make no difference in the instant case in view of the whole record.

The trial court did not err in any ruling nor does the record show any cause for reversal. We reiterate that the demand for trial was not made at the first or second term, as provided by law, nor was the defendant present in court when such demand was made.

Judgment affirmed.

Carlisle, J., concurs. Townsend, J., concurs specially.