82 P.2d 762 | Colo. | 1938
THIS is an original application for a writ of habeas corpus by Harry Schechtel who alleges that he is unlawfully restrained of his liberty under and by virtue of a criminal capias issued out of the seventh division of the district court of the second judicial district of the state of Colorado.
On the 5th day of October, 1935, in the district court *79 of the United States for the District of Colorado the petitioner was found guilty of an offense against the laws of the United States, and on said date was sentenced to a term of four years in the federal reformatory at El Reno, Oklahoma, where, and in the United States Detention Farm at La Tuna, Texas, to which he was subsequently transferred, he has been continuously confined by reason of said conviction until he was recently transported by a United States Marshal to the City and County of Denver, Colorado, under the circumstances hereinafter mentioned. The federal sentence, with credit for good conduct, will not expire until November 2, 1938.
[1, 2] On April 11, 1936, when Schechtel was in federal prison, an indictment was returned against him by a grand jury within and for the second judicial district in the state of Colorado, wherein he was charged with the offense of conspiracy to commit a felony, to wit: Uttering a forgery, in violation of the laws of the state of Colorado, the alleged offense being distinct from that involved in the federal conviction. A capias upon the state indictment was issued on the 13th day of April, 1936, but was never served upon the petitioner until he was returned to Denver by a United States marshal in August, 1938. Soon after the indictment was returned the then district attorney of the second judicial district of Colorado, requested the warden of the federal reformatory, to which petitioner had been sentenced, to detain him upon the completion of the federal sentence for delivery to a Colorado officer, for return to Colorado for trial on the state indictment. No further formal action upon the part of anyone with reference to the state indictment was taken until January 12, 1938, when petitioner by counsel filed in the district court of the second judicial district a motion to dismiss the indictment upon the ground that the petitioner had been denied the right to a speedy trial of the charges contained in the indictment, guaranteed him by our Constitution *80 and statutes, alleging that five terms of said court, including the term at which said indictment was returned, had passed without a trial being had and that such delay was not due to or upon the application of the petitioner, nor were any continuances applied for or granted by or to the people to procure evidence or otherwise, and that petitioner has always been desirous of and ready for trial. It would appear that this motion was prompted by the circumstances that at about this time the petitioner had served a sufficient period in the federal prison to become eligible for parole, the granting of which, however, was precluded under the federal regulations by the pending state indictment. The petitioner bitterly complains that its pendency has deprived him of parole, but with this consideration we cannot be concerned since we know of no principle by which the officers in Colorado, charged with the prosecution of Colorado indictments, should be guided in their conduct by the federal prison parole status of the accused thereunder. The state resisted the motion upon the ground that it could not put petitioner on trial until the completion of the federal sentence, and asserted that it was ready to proceed with the trial at the September, 1938, term of the district court. By a well considered written opinion Judge Walsh of the district court overruled the motion to dismiss, but, in the light of the expressed intention of the state to try the case, recommended that the district attorney make application to the proper federal authorities for the return of the petitioner to Colorado for the purpose of arraignment under the indictment. After securing the consent of the Attorney General of the United States, the state district attorney filed an application for a writ of habeas corpus ad prosequendum in the United States district court for the district of Colorado, as a result of which an order was issued by that court directing the United States marshal for the district of Colorado to transport the petitioner from the federal detention farm at La Tuna, Texas, to Denver, Colorado, for *81 arraignment before the state district court, following which it was directed that the petitioner be returned by the United States marshal to the federal detention farm. Pursuant to this order the petitioner was returned to Colorado and lodged in the county jail of the City and County of Denver, whereupon the habeas corpus petition before us was filed.
[3] This procedure is in accord with the practice approved in In Re Miller,
[4] The district attorney points out that petitioner was never committed or admitted to bail on the state indictment during the period involved and upon this basis argues that the statute is not available to him. It is unnecessary for us to determine the soundness of this technical contention in the proceeding before us, since it is evident that the fundamental right of an accused to a speedy trial springs from the constitutional provision. The statute must be regarded as, having been enacted for the purpose of rendering the constitutional guarantee effective and providing a method of securing the right declared. If by the circumstances of the case the constitutional guarantee cannot be invoked by an accused, the statutes confer no additional right; otherwise, it may be considered as a tolerance limit for a delay in trial.
[5] In In re Garvey,
These cases are based upon the principle that even though the accused under a pending indictment may be confined to a penal institution of the same sovereign, he is, nevertheless, in the actual custody and control of that sovereign and by its authority and at its will may be produced in court for trial upon the untried charge and that a delay of the trial thereon beyond a reasonable time, as contemplated or fixed by constitutional or statutory provisions, entitled the accused to a dismissal of the pending indictment upon precisely the same basis as if he was unrestrained in his liberty. In other words, the circumstance that one is convicted and imprisoned by a given sovereignty does not alter the degree of diligence required of the prosecuting officials of the same sovereignty in giving him a speedy trial upon any subsequent criminal charge.
[6] Obviously, a very different situation exists where, as here, the United States has first acquired jurisdiction and custody of the petitioner and at the time the state indictment was returned, as well as during the period of delay, the federal government, and not the state of Colorado, has had him under its exclusive control. Under such circumstances it would seem certain *84
that unless, during the term of petitioner's federal sentence, an unqualified and absolute right reposed in the Colorado authorities to require the United States to permit the presence of the petitioner for trial before the Colorado court in which the indictment is pending, and without which presence no trial could be held, that the prosecuting officers of the state could not be charged with unreasonable delay in failing to proceed with the trial on the state indictment. It is clearly established by the case of Ponzi v. Fessenden,
[7] We, therefore, must conclude that no constitutional right of the petitioner to a speedy trial was violated by failure of the state to put him on trial while he has been in the custody of the United States and serving a sentence in her prisons for a violation of her laws. Neither do we believe that any obligation under such circumstances is imposed upon the prosecuting authorities of the state of Colorado to make application to the federal government for the return of a federal prisoner to the state for trial on state charges. Our conclusion is further sustained by Lee v. State,
The petition for the writ is denied.
MR. JUSTICE HILLIARD, MR. JUSTICE YOUNG and MR. JUSTICE BAKKE concur. *86 [THIS IS A BLANK PAGE] *87