1. Where a demand for trial is made by a criminal defendant at the term when the indictment against him was handed down for an offense not affecting his life reciting that there were jurors impaneled and qualified to try his case, and the judge enters an order reciting that the demand is true and is to be spread upon the minutes, it is conclusive by the terms of the order that there was in fact a jury impaneled and qualified to try the defendant. Where the defendant’s case is not called for trial at that term of court or the next term thereafter, the defendant on motion is entitled to be discharged. Bryning v. State, 86 Ga. App. 35 (5, 7) (70 SE2d 779); Denny v. State, 6 Ga. 491 (1849).
The defendant here was indicted at the December, 1975, term of the Superior Court of Chatham County for one offense and at the July, 1976, term for two others. No further action was taken in the matter. On March 4,1977
2. It is true that in Bryning, supra, the facts of the case were shown by a stipulation whereas here there is a stipulation augmented by testimony. We do not find that this makes any difference, or that it matters that in the present case the demands were made at the second and third terms of court after the return of the indictment and in Bryning at the first term, since the same result accrues when the demand under Code § 27-1901 is made by special permission of the court. In both cases, then, an indictment was ripe for trial. In both cases the civil and criminal juries had been dismissed when the demand was made. (Here the demand was made on the last day of the term; in Bryning it was made three weekdays before the term adjourned). In both cases the term was so nearly over that there would probably not be opportunity to summon and impanel another jury to try the case. Bryning holds that under these circumstances the defendant has made a proper demand for trial, has not been tried at the term at which the demand was made or the next succeeding term, and is entitled to acquittal, regardless of the fact that the jury had been excused prior to the date on which the demand was made, allowed and filed.
Bryning is exactly on point and will be followed by this court. The state relies on Jordan v. State, 18 Ga. 532, and DeKrasner v. State, 54 Ga. App. 41 (187 SE 402), for the general proposition that if there is no jury impaneled and qualified at the time the demand is made, the demand is not good for that term. Bryning does not deal with that proposition at all; it holds that where the motion itself recites that there is in fact a jury impaneled and qualified
Further, the reason for the rule is well illustrated by the present case. This defendant was accused under three indictments. At the time of his discharge one of the cases was in its sixth term without trial and the others were in the fifth. It is exactly this situation which the law seeks to avoid.
The judgment discharging the defendant is affirmed.