State v. Arkle

*86 . MB. CHIE-F JUSTICE CALLAWAY delivered the opinion of the court. The Constitution of this state provides that in all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. (Art. Ill, sec. 16.) The legislature has declared that “a court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: * * Sub. 2. If a defendant whose trial has not been postponed upon his application is not brought to trial within six months after the finding of the indictment, or the filing of the information.” (Sec. 12223, Bev. Codes 1921.) The legislature has thus defined what shall constitute a reasonable time within which a defendant must be brought to trial. (People v. Morino, 85 Cal. 515, 24 Pac. 892.) •Says Buling Case Law: “A statute providing that one accused of crime shall be brought to trial within a specified time, where delay is not attributable to the prisoner’s act, is mandatory and imperative in its provisions and confers no discretion on the court. Hence the accused is entitled to his discharge after the lapse of time prescribed by law, where he was not tried, if he brings himself within the statute, by showing that he was not in fault and that he did not apply for a continuance, and where the prosecution shows no valid cause for delay.” (8 B. C. L. 73; and see 8 Cal. Jur., sec. 276.) In People v. Morino, supra,, the court said: “A party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny Mm a right so important, or to prolong his imprisonment without such trial beyond the time provided by law. The statute is imperative. *87 The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed.” (And see In re Begerow, 133 Cal. 349, 85 Am. St. Rep. 178, 56 L. R. A. 513, 65 Pac. 828; Cordts v. Superior Court, 53 Cal. App. 589, 200 Pac. 726; United States v. Fox, 3 Mont. 512.) The fact that the defendant is admitted to. bail does not alter the case. (Ex parte Miller, 66 Colo. 261, 180 Pac. 749; Ford v. Superior Court, 17 Cal. App. 1, 118 Pac. 96; Matter of Ford, 160 Cal. 334, Ann. Cas. 1912D, 1267, 35 L. R. A. (n. s.) 882, 116 Pac. 757; 8 Cal. Jur., sec. 276.) In State v. Keefe, 17 Wyo. 227, 17 Ann. Cas. 161, 22 L. R. A. (n. s.) 896, 98 Pac. 122, the court said: “The purpose of the provisions against an unreasonable delay in trial, is not solely a release from imprisonment in the event of acquittal, but also a release from the harassment of a criminal prosecution and the anxiety attending the same, and hence an accused admitted to bail is protected as well as one in prison.” When it appears that an accused has not been brought to trial within six months after the filing of an information and it does not appear that this trial has been postponed upon his application, the burden is upon the state to show good cause for not bringing him to trial within the time prescribed by the statute. (Cordts v. Superior Court, supra; Von Feldstein v. State, 17 Ariz. 245, 150 Pac. 235; State v. Dewey, 73 Kan. 735, 85 Pac. 796, 88 Pac. 881; State v. Bateham, 94 Or. 524, 186 Pac. 5.) This court is in as good a position as was the trial court in considering the affidavits presented upon the motion to dismiss. We say without hesitation that the positive affidavits presented by the defendant and his counsel quite overcome the showing made by the deputy county attorney. It would seem, however, that the court’s reason for overruling the motion to dismiss was not that defendant’s counsel had agreed to a postponement of his trial, but that in view of the general agreement of counsel present at the time the calendar was called *88 respecting eases then ready for trial tbe judge “deemed it unwise and inexpedient and unnecessary to call a jury during tbe May term of court.” As to this defendant this case was not tbe “good cause” which the statute contemplates. A person against whom the county attorney has filed an information accusing him of crime, whether in jail or at liberty upon bail, is entitled to the speedy public trial which the Constitution guaranties, and within the limitations prescribed by the statute. We hear much of the law’s delays, particularly in criminal cases; it is an age-old complaint. The constitutional and statutory provisions above adverted to were designed to obviate delay, to bring about a speedy and impartial administration of public justice. These provisions have an ancient background; speaking upon this subject in the Begerow Case, supra, Mr. Justice Temple observed that around the right of the individual to a speedy trial the English have waged their great battle for liberty. “Without the narration of the conflicts to which it has given rise the history of the English people would be a dull affair. The right of the government with reference to persons accused of crime has been, and is yet, a matter of great consideration. It led to the agitation which wrung from power the great charter, the petition of right, and the Habeas Corpus Act. All the great achievements in favor of individual liberty, of which the English people are so justly proud, may be sa’id to have come through contests over the rights of persons imprisoned for supposed crime.” That it is inconvenient for men to assemble for jury duty or that the court finds it inexpedient to call a jury is no excuse for not bringing a defendant to trial within the time prescribed by statute. (State v. Brodie, 7 Wash. 442, 35 Pac. 137; Newlin v. People, 221 Ill. 166, 77 N. E. 529; 16 C. J. 447.) As the state did not sustain the burden imposed upon it by showing good cause for its failure to bring the defendant to trial within the six months’ period prescribed by the statute, the court committed error in overruling the motion to dismiss. *89 Accordingly, the judgment and order are reversed, and the district court of Richland county is directed to dismiss the action. Reversed. 'Associate Justices Holloway, Galen, Staek and Matthews concur.