4 Nev. 113 | Nev. | 1868
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The defendant is brought before this Court upon a writ of habeas corpus, and his release claimed by counsel upon the grounds: First, that he cannot have a speedy trial in the county where he was indicted, and where it is claimed he has the right to be tried, because no competent jury can be obtained there, and no change of venue can be had upon the motion of the prosecution; and second, that the order made by the Court postponing the trial indefinitely, operated as a release of the prisoner, and consequently the Sheriff has now no legal authority to hold him in custody.
Section 582 of the Criminal Practice Act indicates what is here understood by a speedy trial. That section declares that “ if a defendant, indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next term of the Court at which the indictment is triable after the same is found, the Court shall order the indictment to be dismissed, unless good cause to the contrary be shown.”
The prisoner here certainly cannot complain that the Court below
It is very clear that there were many persons in the comity qualified to act as jurors, whose attendance the Court was not able to secure at the last term, who, however, may be summoned for the next term. Hence, it is not by any means certain that a jury cannot be impanneled at the next term of the Court. I do not hesitate to say, that if at the next term the Court fails, after proper efforts to obtain a jury, that the defendant should be released. But it seems to me that he should not be discharged until every
The order made by the Court below, postponing the trial, was not regular. But it follows, from what has been said, that the case could have been continued for the term. Such was, perhaps, the effect of the order made. A continuance for the tenn would have been more regular, and the order had better be so modified.
The prisoner is remanded to the custody of the Sheriff of Washoe County, to await the action of the District Court.
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I agree with my associate, Justice Lewis, in the conclusion that the prisoner should be remanded to the custody of the Sheriff of Washoe County. I also agree with him in most of his othér conclusions in this case. But I do not agree with him that the State is bound to procure a speedy trial for a prisoner who does not himself choose to take those steps necessary to procure such trial.
Where there is too much prejudice or feeling, against a person charged with crime, to get an impartial trial in the county where the crime is alleged to have been committed, all he has to do is to ask for a change of venue to another county, in order to get that speedy trial the Constitution guarantees. If in such case the prisoner refuses to ask for a change of venue, I see' no other way but to keep the case pending, until by change of population, the growing up of a new generation, or the wearing out of the memory of the act, an impartial trial can be had. Establish the contrary doctrine, and all a man has to do to escape punishment is to commit a crime so open and atrocious in its character as to convince every intelligent man in the country that he is unquestionably guilty and deserving punishment, and then he must be turned loose on society to commit other and more atrocious crimes.
It would only be on well settled authority, or the clearest necessity, that I would consent to the establishment of a rule to turn loose on society the worst class of criminals, on the sole ground that their crimes were so great, that the whole community in which they were committed were of the opinion that the accused deserved punishment.