
    James Price, plaintiff in error, vs. The State, defendant in error. The Same vs. The Same.
    The IStli section of the 14th Division of the Penal Code, authorizes a demand for trial, to he made at the first, or at the second Term, hut not afterwards.
    
      Indictment, from Polk county. Decided by Judge Hammone, October Term, 1857.
    At April Term 1856, Price was indicted in two cases, for “keeping open a Tippling House on the Sabbath day.” At the April Term, 1857, being the third Term afterwards, he made a demand for trial, which was entered on the minutes of the Court. At the next Term, the State was not ready for trial, and the defendant insisted on being discharged.
    The Court refused to discharge him on the ground, that the demand was not made at the Term of the Court at which the indictment was found, or at the next succeeding Term thereafter.
    ( To this decision of the Court, the defendant filed his bill of exceptions, and assigned the same as error.
    Chisolm & Waddell, for plaintiff in error.
    Sol. Gen’l, contra.
    
   By the Court.

Benning, J.

delivering the opinion.

The 18th section of the 14th division of the Penal Code, is in the following words: Any person against whom a true bill of indictment is found, for an offence not affecting his or her life, may demand a trial at the term when the indictment is found, or at the next succeeding Term, thereafter, which demand shall be placed upon the minutes of the Court; and if such person shall not be tried at the Term when the demand is made, or at the next succeeding Term thereafter; provided, that at both Terms there were juries empannelled and qualified to try such prisoner, then he or she shall be absolutely discharged and acquitted of the offence charged in the indictment.” — Pr. Dig. 661.

In the present case, the demand was not made until the third Term. Was it a demand authorized by this section?

It certainly was not a demand authorized by the letter of the section; it may be doubted, whether it was not a demand forbidden by the letter of the section ; expressio unius exclusio alterius.

To make this a demand authorized by the section, it is necessary, then, to enlarge the letter of the section by construction. That is a dangerous expedient; therefore, one not to be resorted to, unless there be some pressing reason for it. Is there any pressing reason for enlarging the letter of this section? I can see none. The right to demand atrial at the first Term, and also at the second, and to stand acquitted, if there is no trial at the Term of the demand, or at the Term next after that, is as much as an innocent man can need, and more than a guilty man deserves.

Cases not falling within the letter of this section, may well content themselves with the old rule, which allows the defendant to bring on his trial, by a special notice to the prosecutor. — 1 Chitty Cr. Law 438.

It is doubtful, whether the section, even when restricted to its letter, does not do more harm than good. It certainly presents a great temptation to defendants in criminal cases of the grade covered by it, to demand a trial, and then get the State’s witnesses out of the way. And it is notorious,, that many defendants yield to the temptation.

We think then, that there is no sufficient reason to justify enlarging this section, by construction, beyond its letter.

True, this opinion is in conflict with that expressed in Denny vs. The State, 6 Ga. 491. But that was an opinion with which the Court has been dissatisfied, for some time.— Jordan vs. The State, 18 Ga. 532.

We think, then, that the Court below, was right in holding, that the demands in these two cases, respectively, were unauthorized ; and therefore, right in disregarding them.

Judgments affirmed.  