Hatcher v. State

ON MOTION ROE REHEARING.

PIill, J.

In Dean v. State, 43 Ga. 218, Lochrane, C. J., speaking for the court, said: “The principle of law laid down in the case of Hoye v. State, 39 Ga. 718, has been misunderstood by the bar, in holding that nothing was waived by the prisoner except it was expressly waived. That case turned upon the jurisdiction of the court, which, by a host of decisions, had to be expressly waived to bind the prisoner in cases where it could be done. But in the progress of a case, before a court of competent jurisdiction, the prisoner may, by his silence, or failure to take exceptions to irregularities transpiring in his presence, bind himself by such waiver, and the courts will not afterwards interfere.” In the instant case the court had jurisdiction to try the defendant. It was a special term of the superior court, called for that purpose, which is authorized by the Civil Code (1910), § 4-876; and the court had jurisdiction to try the defendant and to receive the verdict even though the verdict was returned on the day that the new term of the court convened. The case is distinguishable from cases where the defendant was tried at an illegal term of court; for in those cases the court was without jurisdiction to try the defendant.

Rehearing denied.