State v. McDonald

Deen, Presiding Judge.

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 (the last day of the December, 1976, term), he made a demand for trial which recited that "there being jurors empaneled and qualified to try the case at this time” he demands trial at the present (December, 1976) or next succeeding term of court (March, 1977) in lieu of which he be discharged. The court entered an order on March 4, 1977, stating the demand was presented, was true, and was allowed by the court. Both the December, 1976, and March, 1977, terms closed without the cases being called for trial. After motion and hearing at the June, 1977, term the defendant’s cases were dismissed and the state appeals.

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 at the time the demand is presented, and the judge recites in his order that the statements of the motion are true, the court will not look behind these statements. Thus, one line of cases deals with the substantive law; the other with the method of showing the existing facts. We treat the court’s order as being true and refuse to consider evidence impeaching it. Code § 27-1901 contains the proviso that "at both terms there were juries impaneled and qualified” without dealing with the question of whether the traverse jury was or was not excused before the demand was filed. This is a handy rule which avoids a mini-trial to prove the administrative convolutions of the court, and it will be adhered to.

Argued February 1, 1978

Decided May 3, 1978

Rehearing denied May 26, 1978

Andrew J. Ryan, III, District Attorney, Joseph D. Newman, Assistant District Attorney, for appellant.

John W. Beam, Jr., for appellee.

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.

Bell, C. J., Quillian,P. J., Webb, Smith, and Shulman, JJ., concur. Banke and Birdsong, JJ., dissent. McMurray, J., concurs in the result of the dissent only.