When a criminal defendant more than two years after his indictment makes a motion that his case be tried, the fundamental constitutional right to a speedy trial requires that the court call the case for trial unless the State makes a reasonable showing for a continuance, even though the time has expired for the defendant to exercise his statutory right to demand a trial or discharge at the term of the demand or the next succeeding regular term.
In a previous appearance of this case, the court held that the defendant had no standing to demand a trial as a matter of right under Ga. L. 1952, pp. 299, 300 (Code Ann. 27-1901.1, 27-1901.2). Blevins v. State, 113 Ga. App. 413 (148 SE2d 192)
. The case is now before this court on a subsequent demand for trial which, among other grounds, alleges that the defendant is entitled to a speedy trial on the indictment; that since his last demand his father and one of his most important witnesses has died; that his mother is getting along in years, that old age is overtaking other witnesses who testified in his behalf, and that the constant and continuous refusal to permit him to have a trial on the indictment is a denial of his right to a speedy trial guaranteed by the State and Federal Constitutions. The trial court "declined to allow the same." The defendant was indicted on August 22, 1963.
A speedy trial is a fundamental constitutional night (Code 2-105, 1-806, 1-815), not a privilege; it has existed in England from the time of the Magna Carta. 21 Am. Jur. 2d 278, 279, 241; 22A CJS 20, 467(2). "The right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. It has been said that the basic policy underlying the constitutional guaranty and the statutes enacted to implement it is to protect the accused from having criminal charges pending against him an undue length of time. However, the guaranty has been held to serve a threefold purpose: It protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and, like statutes of limitation, it prevents him from being exposed to the hazard of a trial after the lapse of so great a time that the means of proving his innocence may have been lost." 21 Am. Jur. 2d 279, 242. "It also applies to a person who is at large on bail, since, in addition to protecting an accused against prolonged incarceration, the right also serves other purposes which are applicable whether the defendant is on bail or not." 21 Am. Jur. 2d 280, 244.
"The rule is that 'all causes shall be called and tried in the order in which they are docketed' . . .; and, unless it appears to the contrary it will be presumed that the judge complied with this rule." Duffey v. Harris, 19 Ga. App. 646 (4) (91 SE 1007); Code Ann. 24-3343. "A different order in calling the docket may be pursued by the court, in its discretion, for the purpose of giving facility and expedition to its proceedings, or for furthering the ends of justice." Code Ann. 24-3343. The defendant in this case has moved that his case be tried in order that the mandate of "a speedy trial" be enforced. The defendant having affirmatively asserted this right and the State having made no reasonable showing for a continuance (Code Ann. 27-2001), we hold that the trial court erred when it declined to grant the defendant his right to a trial upon this demand. This is particularly true since the defendant's petition shows that he was tried under another indictment, returned the same day as the one upon which he now seeks trial, over two years ago; and it is presumed, no countershowing being made, that the prior trial took place in its regular order.
The case is reversed and remanded with direction that the defendant be tried at the next regular term of court or be discharged. Nichols, P. J., and Deen, J., concur.