87 Neb. 727 | Neb. | 1910
Complaint was filed in the county court of Harlan county charging this defendant and one Heddendorf jointly with the crime of murder in the first degree. Upon examination had in that court, the defendants were held for trial to the district court, and in the April, 3909, term of the district court an information was filed charging them in that court jointly with the crime of murder in the first degree. Upon the application of the county attorney, it was ordered that they be tried separately. Thereupon both defendants asked for a continuance until the next term, which was refused, and the defendant Heddendorf was put upon trial and convicted and sentenced to the penitentiary for life. The judgment of conviction was reversed by this court and a new trial ordered. Heddendorf v. State, 85 Neb. 747. After the conviction of the defendant Heddendorf in the April, 1909, term of court, this defendant demanded immediate trial, which was refused, and the cause against him continued. Subsequently, after several terms of court, he asked to be discharged under section 390 of the criminal code. This request was refused, and the county attorney was permitted to enter a nolle prosequi, whereupon the case was dismissed and the defendant discharged. He insists that this prosecution, being dismissed by the county attorney, would not be a bar to further arrest and prosecution, and that his right was to be “discharged so far as relates to the offense for which he was committed,” as the statute provides.
Public justice requires that criminal trials shall be dis-pored of promptly. The certainty that justice will be done and the guilty convicted without unnecessary delay is
It has been decided by this court that a term of the district court in which the indictment is found or information filed cannot be counted in determining the time within which the accused must be brought to trial under the provisions of section 390. Hammond v. State, 39 Neb. 252; Whitner v. State, 46 Neb. 144. The next term of the district court for Harlan county was begun on the 20th day of September, 1909. The order of the judge of the district court assigning the terms' of the court for that year does not appear in the record; but there is in the record a copy of an order entered in the September term, in which it is recited that that term was an equity term and that no jury was present. For this reason, it is suggested that this term must not be counted in determining the time within which the accused must be brought to trial. The statute in question fixes an arbitrary limit of the discretion of the trial court beyond which it cannot go, and the language of the section is too plain and un-. equivocal to allow of the meaning suggested. The accused must “be brought to trial before the end of the second term of the court having jurisdiction of the offense.” There will be no doubt that the trial court had jurisdiction of the offense at this Sex>tember term of court. The fact that no regular panel of jury was present at that term is not of controlling importance in a capital case which involves the life and liberty of the accused. It is rare in such cases that the regular panel is sufficient for such purposes. As an illustration, we notice that this record shows that in the trial of the defendant informed against jointly with this defendant, although the regular panel was present at the term, two special writs of venire were issued summoning 100 additional jurors. The Sep
The order of the district court is reversed and the cause remanded, with instructions to enter an order discharging the defendant from the offense for which he was committed.
Reversed.