State ex rel. Northrup v. Conrow

De Witt, J. The constitution of this state provides, in article III, section 16, 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. The statute, Criminal Practice Act, section 303, is as follows: “ Sec. 303. If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the indictment is found, he shall be entitled to be discharged, so far as it relates to the offense for which he was committed, unless the delay shall be [554] granted on the application of the prisoner, or shall be occasioned by want of time to try the cause at such second term.” The statute thus declares, in effect, that if a defendant committed to prison be not tried before the end of the second term after his indictment (or information filed), unless he himself, or the want of time, has caused the delay, this is not giving him a speedy trial. But the relator in this case does not bring himself within the provisions of section 303. It is not the fact that he was not brought to trial before the end of the second term held after the information was filed. On the contrary, he was tried twice within the period defined by section 303, and within sixty days. It is true that two terms of court elapsed without trying him, afler he was granted a new trial, on March 24th. If he could show that the state unreasonably, and without cause, delayed trying him for two terms of court, after he had once been tried, we are of opinion that he might urge such delay as a denial of a speedy trial, without relying upon the statute (§ 303), and depending simply upon the provisions of the constitution (article III, § 16); for the statute (§ 303) does not attempt to, even if it could, provide what shall alone be a denial of a speedy trial. We may therefore inquire whether the facts shown constitute a denial of a speedy trial. In the case of United States v. Fox, 3 Mont. 512, in this court under the territorial organization, the decision was not made in view of section 303, Criminal Practice Act, but was rather upon the general principles of the guaranty of a speedy trial by the constitution of the United States. (Article VI of the amendments.) In that case the United States was the prosecutor. It neglected, for a whole term of court, its duty to provide funds to try the case. The providing of such funds was wholly within the power and the duty of the United States, and it wholly neglected to so provide them, and did not attempt to offer any excuse for the neglect. The court discharged the relator in that case by reason of the neglect to prosecute. But in the case at bar the state has pursued the relator, not without diligence. It tried him twice in rapid succession. It resisted his motion for' a new trial. Upon that motion being granted, the state took an appeal to this [555] court, and, during the pendency of the appeal in this court, the state did not try the defendant again. Pending that appeal defendant sought to be discharged by writ of habeas corpus in the district court, and, being remanded, he is now here on appeal from that judgment. This court has now determined that the appeal of the state in the case of State v. Northrup, ante, p. 522, was not permitted by law. -Relator’s argument now is that, as it was decided that the state had no appeal in the case of State v. Northrup, ante, p. 522, the state is now in the same position as if it had not attempted to appeal, and had simply willfully neglected to try relator during the time when the pretended appeal was pending. We cannot concur in that proposition. Whether or not an appeal would lie to this court from an order granting defendant a new trial seems to have been a question of great difficulty. See the opinions in State v. Northrup. The question had never been decided in this jurisdiction. Upon the hearing the contest was most vigorous and earnest on both sides, and the difficulties were such that, after mature deliberation, this court was not able to announce a unanimous decision. Under these circumstances the omission by the state to try the relator a third time, pending their attempted appeal to tlñs court, was not a willful or unreasonable neglect to prosecute. When we observe the difficulty which the Question of the appeal caused this court, we may conclude that the legal advisers of the prosecution in the district court did not unreasonably delay the trial of the relator when they ventured to entertain the opinion that they were entitled to the appeal which they attempted to prosecute in State v. Northrup. The judgment of the district court remanding relator is affirmed. Pemberton, C. J., concurs.