58 N.E.2d 353 | Ind. | 1944
The prosecution of an indictment for murder in the first degree resulting in this appeal was begun in the Criminal Court of Marion County and completed in the Boone Circuit Court 1. where appellants November 23, 1943, filed a joint and several motion for discharge because of delay in bringing them to trial. Reliance is placed upon the constitutional mandate that "Justice shall be administered . . . speedily and without delay," Art. 1 § 12, Indiana Bill of Rights, and also upon § 9-1402, Burns' 1933, § 2238, Baldwin's 1934. The rights of a defendant under this statute are not coextensive with his rights under the constitution as we shall show. Answer was filed by appellee, there was a hearing at which evidence was submitted, each appellant testifying, and the motion was overruled which is the only error assigned. Thereafter appellants were tried by jury upon the indictment and convicted of manslaughter. From a judgment imposing indeterminate sentences of 2 to 21 years this appeal is taken.
Polley's appeal is controlled by considerations that do not apply to his coappellants and therefore requires separate disposition. The homicide occurred March 7, 1936, in Marion County. The three appellants and one Jackson were indicted for murder December 7, *74 1936. Polley was then in California in violation of his parole from the Reformatory to which he had been committed in 1932. He was apprehended in 1939 and arrived in the Marion County jail May 2. An attorney he employed entered a special appearance June 22, filed motions to be let to bail and to quash the indictment July 10, and motion for separate trial September 8, on which day the latter two motions were passed upon and he was arraigned and pleaded not guilty. By inference from a pleading introduced in evidence at the aforesaid hearing, trial was set for February 5, 1940, continued at the State's request and reset for June 11. On that day evidence was heard on his motion to be let to bail but the hearing was not (and apparently never was) completed. July 9, 1940, he filed separate motion for discharge and four days later upon written motion of the prosecuting attorney, based on insufficiency of available evidence, the indictment was nolled. In June, 1940, he was returned to the Reformatory as a parole violator and in October transferred to the State Prison, where he has remained serving the 1932 sentence with the exception of the occasions requiring his presence in subsequent proceedings. A new indictment in identical language was returned April 19, 1942. A month later the three appellants filed motion to be returned to Marion County for arraignment May 28 but they then asked continuance for later arraignment. Polley participated in a motion filed June 4, 1942, for reconsideration of the nolleprosequi entered on the first indictment and a motion filed June 6 to quash the second indictment which was overruled June 11, when all appellants were arraigned thereon and pleaded not guilty. July 10, 1942, each appellant filed affidavit for change of venue which was perfected as above stated. In the next or September, 1942, term of the Boone Circuit *75 Court appellants filed a plea of double jeopardy to which the State demurred. The demurrer was argued November 20, and later sustained. The motion for discharge now under consideration was filed November 23, 1942, and the hearing thereon was held March 23, 1943, in the following term.
Mere recital of this sequence of events is sufficient to show that neither his statutory nor constitutional rights were invaded. A fugitive from justice may not invoke the aid 2, 3. either of the statute or the constitution. His presence is necessary at his trial. Miles v. State (1944),
One seeking the benefit of the statute must bring himself within its terms. State v. Beckwith (1944),
In McGuire v. Wallace (1886),
In Ohio one, who is confined in a penitentiary for another crime, is held not to be within the provisions of *77
the statute. Shafer v. State (1932), 43 Ohio App. 7, 8. 493, 183 N.E. 774, Brophy v. State (1898), 8 Oh. S. C.P. Dec. 698. The reason given in the latter, that the convict "was practically dead as a civilian and before he may make this demand he must serve his sentence," is known as the doctrine of autrefois attaint which has not been approved generally in the United States. State v. Keefe, supra;Arrowsmith v. State (1915),
But it does not follow that the imprisonment of Chelf and Gordon in the Reformatory and State Prison deprives them of their constitutional right. The opposite view was expressly 9. declared in Shafer v. State, supra. With little dissent it is generally held that a convict, like any other defendant, is entitled to a speedy trial under similar Bills of Rights. 22 C.J.S., Criminal Law § 467, p. 715, n. 50, which recites the adequate reasons given in State v. Keefe, supra. So we pass to the final question: Was there such unreasonable delay in administering justice as to entitle them to discharge?
The factual backgrounds for their claims are similar but not identical. Each was served with capias on the first indictment while he was in the Reformatory. The motion alleges and appellee's answer admits that they "were soon thereafter arraigned and pleaded `Not Guilty.'" They were not again in court, so far as the record discloses, until about June 11, 1942, when they were arraigned and entered the same pleas to the second indictment. Neither by act nor word did either of them communicate to the court or the prosecuting attorney at any time a desire or demand for trial unless Chelf's first demand for discharge filed June 11, 1940, can be called such. A distinction between the two kinds of demands is recognized in State ex rel.Anderson v. Callahan (1922),
In State v. Beckwith, supra, we quoted with approvalState v. Miller (1913),
To the contrary is State v. McTague, supra, where, with facts similar to those in the case at bar, the court said:
"The constitutional and statutory provisions for a speedy trial are for the protection of the defendant, but that does not mean that the state is the only one that may initiate action. There is really no reason for the courts to free an accused simply because a dilatory prosecutor has `gone to sleep at the switch' (no reference to counsel in this case) while the defendant and his counsel rest in silence. We hold that these solicitous privisions are not to be used as offensive weapons, but are for the benefit of defendants who claim their protection. They are a shield, and, as said in State v. Rowley,
In the first motion for discharge, signed and sworn to only by Chelf's attorney, is the averment that "being without funds he was unable to employ any attorney." There may be question whether this was legitimate evidence of the fact though it was introduced without objection. It was not confirmed by Chelf who testified. Twice, being arraigned, he had opportunity to ask for the appointment of an attorney, and, as well, to ask *81 for an early trial. The fact that he was represented at the hearing and in the trial by his present attorney is some indication that when he so desired he could procure counsel. But assuming that he had neither money, nor relatives or friends interested in his defense, there was no reason shown why if he desired a trial he could not have used some means so to inform the court.
Jackson testified at the hearing in support of his own motion for discharge. Over the objection of the State's attorney the court permitted him to state that he had written a letter 10. to the judge asking for trial. When the same attorney examined Chelf and Gordon he asked neither of them concerning their efforts, by letter or otherwise, to get an early trial. Two inferences may be drawn from this omission, either that the attorney was not interested in dismissal of the indictment as to Chelf and Gordon, or that he knew and feared the negative answer that each might make concerning an early trial. The court had a right to draw the latter inference, GreatAmerican Tea Co. v. Van Buren (1941),
The difference between the diligence required of an accused on bail and with counsel and that expected of him who is imprisoned and without an attorney seems to us to be merely one of 11-15. degree. Some diligence is necessary; how much depends upon the circumstances. Those cases holding that a demand for trial made in open court or by motion is a condition precedent to the granting of a discharge would seem inapplicable to the situation of Chelf and Gordon. But if they wanted a trial they should have so informed *82 the court. From the flood of long hand letters and petitions addressed to this and other courts, not excluding the United States Supreme Court, by inmates of Indiana penal institutions, we may take judicial knowledge of the fact that this method, at least, was available to these appellants. There is no evidence of its use. By Chelf's first motion the court was not informed that he was demanding a trial. Otherwise throughout the entire period he and Gordon were silent. As stated in the Beckwith case a defendant may be content "to remain silent and inactive in the hope of better chances" resulting from delay. The constitution does not compel him to forego these chances. The right is for his benefit and therefore may be waived.
The judgment is affirmed as to all appellants.
Note. — Reported in