Dickerson v. State , 108 Ga. App. 548 ( 1963 )

Pannell, Judge,

dissenting. In my opinion, Code § 27t1901 the words “may demand at either the term when the indictment is found, or at the next succeeding regular term thereafter, a trial” must be construed to mean that demand be made to the judge and that it is his duty to order it placed on the minutes. See Odom v. State, 25 Ga. App. 746 (105 SE 54) in which it was stated, “it is the duty of the judge to have the demand placed upon the minutes of the court.” Dacey v. State, 15 Ga. 286, held that it is error for the trial judge to deny a motion to place a demand for trial on the minutes of the court.

In Moore v. State, 63 Ga. 165 (1), Judge Bleckley stated, “It is the essence of a demand for trial under § 4648 [27-1901] of the Code, that it should be entered on the minutes of the court at the term when made, so that the prosecuting officer may know from the record that a trial must be had then or at the next term. If leave to enter be refused, the remedy is by writ of error.” The term, “if leave to enter be refused,” in, my mind could only refer to refusal of the judge, not the clerk of court’s refusal. The judge would be one to refuse or grant—and he has only two choices when the motion is made, one to order it placed on the minutes, the second to grant defendant a trial.

The reasons advanced for allowing the reading of minutes as provided by Code § 24-107 to give notice to the court are defective for the following reasons: Dacey v. State, 15 Ga. 286, supra, holds that the judge has only the two choices as above stated, (1) to order the motion placed on the minutes, or (2) to grant defendant a trial. This Code section would appear to give him three if demand were required only to be filed with the clerk, (1) to order the motion placed on the minutes; (2) to grant defendant a trial; (3) to allow him to repudiate the minutes of the court. I am thoroughly in agreement with the premise that demand is a matter of right and that it is imperative. To allow a judge to repudiate the minutes on the last day of court by not signing and passing an order repudiating, would in my estimation rob the defendant of his right to have the demand entered. If he has a right, and I hold he does, then the judge cannot defeat it by repudiation.

The Moore case, supra, states that, “It is of the essence of a demand for trial . . . entered on minutes ... so that the prosecuting officer may know from the record that a trial must be had then or at the next term” of court. For him to know that it must be tried “then” must he inquire of the clerk if any motions in writing have been handed to him, not yet on adjournment signed by the judge (or repudiated) before he can safely agree for the court to be adjourned? In baseball, a batter has three strikes—the prosecuting officer should have two chances— I believe he has only one term (chance) to try the defendant in many cases if the majority decision is followed. I think the motion made to the judge, either oral or written, in open court permits him to run his court and decide questions of procedure. It is the only way I know that he can in all cases have actual notice and do justice to the defendant. The statute and the cases do not indicate to me that he may order the demand for trial placed upon the minutes, but on the other hand make it his duty to so order as to the first two terms. The may comes in subsequent terms part of the statute. The term demand “at” term of court indicates while a jury is impaneled. The term is hot “during” term of court.

The case of Wright v. State, 97 Ga. App. 653 (1) (104 SE2d 158) seems to be sound.

In Kerese v. State, 10 Ga. 95, the record shows that the defendant demanded trial in open court, at the first term, that a jury was impaneled and that the motion was ordered entered.

Nix v. State, 5 Ga. App. 835 (63 SE 926), shows that demand was made in conformity with defendant’s rights under the Code ■—-that he was tried twice at the first term—that he was tried once at the next term and all three cases resulted in mistrials— that he again at next term demanded trial and was not tried— nor were extraordinary facts shown why he was not tried again at that term. He was discharged and I think justly so.

The record does not disclose how the demand was made in Durham v. State, 9 Ga. 306, but in that case the defendant was tried on his demand at the next term and his demand for another trial at that term was refused and for said refusal he was subsequently released.

In Dublin v. State, 126 Ga. 580 (55 SE 487) the accused in writing demanded a trial, the demand being in the terms of the statute. The case shows this demand was by the order of the court placed upon the minutes. In the present case the record shows there was no order of any judge on said demand for trial and that the case was not tried at either term.

There was certainly in those cases no doubt that the prosecuting officer and the judge were put on actual notice. I feel that a defendant is entitled to a speedy trial and that to insure him this right there should be no grounds for the court to make him prove that demand was duly made. I think it should be automatic and that the requirement that demand be made to the judge in open court is the only way he can be assured of his rights.