The judge erred in not continuing the case until the September term, under the provisions of the act creating the city court of Carrollton.
DECIDED NOVEMBER 17, 1944. The defendant was, on information, accused of illegal possession of whisky on which the revenue tax had not been paid. His case was called for trial at the June term of the city court of Carrollton. Before announcing ready, his attorney filed a special plea which alleged: "1. That there is now pending in the said city court of Carrollton an accusation against defendant charging him with the offense of having and possessing intoxicating liquors on which the license and tax as required by law had not been paid, which was filed in said court by the solicitor thereof on the 25th day of May, 1944. 2. Defendant says that he has never been arrested `on warrant issued from said city court,' nor has he ever been `bound over to said city court,' as is required by the law governing the procedure in criminal cases in said city court, and `he demands trial by jury,' as is also provided by law governing procedure in said city court in criminal cases. 3. Defendant says *Page 755 the said city court is now in session, and as the foregoing conditions have not been complied with, the above stated case does not stand for trial at this the June term, 1944, but should be continued until the September term, 1944, of said city court, as this defendant is not consenting to being tried at this the June term, 1944. Wherefore, defendant prays that this his special plea be sustained, and said case continued until the September term, 1944, of said city court."
The court heard evidence on this plea. The evidence in the record is: "Defendant sworn: This accusation that they have got against me for possessing liquor, I state to the court that I have not at any time been committed or tried at a committal trial, nor have I ever had a hearing before anybody. I just gave bond to Mr. Kilgore." B. B. Kilgore testified: "I have never arrested Dibb Dobbs or Ravee Dobbs on a bench warrant issued by the judge of this court in this liquor case. I have never arrested him on that case. Mr. Lambert took a bond for him." H. R. Lambert testified: "I put Dibb Dobbs under bond. He did not ask for any kind of commitment hearing."
The act creating the city court of Carrollton as amended (Ga. L. 1909, p. 207, sec. 24), reads: "Be it further enacted, that defendants in criminal cases in said city court may be tried on written accusation setting forth plainly the offense charged, founded on affidavit made by the prosecutor, before the judge of said city court, and said accusation shall be signed by the prosecutor and the prosecuting officer of said city court. Upon such affidavit and accusation being made and signed and filed in the clerk's office of said city court, it shall be the duty of the judge of said city court to issue a warrant for the apprehension and arrest of the defendant, directed to the sheriff and his deputies of said court, and to all and singular the sheriffs and constables of this State. No defendant in criminal cases in said city court shall have the right to demand an indictment by the grand jury of Carroll County. Before the arraignment of the defendant said judge shall inquire of him whether he demands a trial by jury, and his response shall be endorsed on said accusation and signed by the prosecuting officer of said court. If the defendant demands a trial by jury, said judge shall admit the defendant to bail, to appear at the next regular term, and from term to term, of said city *Page 756 court, or upon failure of the defendant to give bond, shall commit him to jail; provided, that when the next regular term of said city court is held within ten days after the arrest of the defendant on warrant issued from said city court, or after the defendant is bound over to said city court, and he demands trial by jury, he shall not be tried at the next term of said city court except by the consent of the accused and the State, but his trial shall be postponed to the next succeeding term of said city court. If the defendant waives trial by jury, then the said judge shall call a special session of said city court and proceed to hear and determine such case conformably to the law governing superior courts; provided, that a reasonable time shall be granted to the State and the accused to procure witnesses and prepare for trial." It will be noted that the provisions of the act creating the city court of Carrollton and providing the procedure by which the court can acquire jurisdiction for the trial of one charged with a misdemeanor were not complied with. Therefore it follows that the case must be reversed. The statute imperatively provides (unless the defendant should waive it) that regardless of whether the defendant be brought into court by means of a bench warrant issued by the judge, or by being bound over to that court by a committing magistrate, the judge, "before thearraignment of the defendant . . shall inquire of him whether he demands a trial by jury, and his [defendant's] response shall be endorsed on said accusation and signed by the prosecuting officer of said court." It does not appear from the record that the judge before arraignment inquired of the defendant as to whether he demanded a trial by jury, and no demand was endorsed on the accusation. It does not appear in this evidence the nature of the bond given by the defendant nor when it was given. Nor does it appear that he was bound over to the city court of Carrollton by a committing magistrate. It does appear that during the June term when the case was called for trial the defendant demanded a jury trial, coupled with a motion in the nature of a special plea to continue the case from the June term to the next succeeding (September) term. The court denied him a continuance of the case to the September term. In this judgment of denial it is our opinion that the court committed *Page 757 reversible error. Since the defendant's first opportunity to demand a jury trial was at the June term, under the provisions of the statute he was entitled as a matter of right to have his case continued until the next succeeding term after having made such demand for a jury trial. If the judge, under the terms of the statute, had required that such demand be made ten days before the time of arraignment — the June term — then in such event under the provisions of the statute the case against the defendant would have been ripe for trial, otherwise not.
There is no merit in the assignment of error on the plea as to misnomer. Since the case goes back for a new trial, we do not discuss the general grounds.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.