Eаrl Winter, the Sheriff of Elmore County, Idaho, as appellant, brings this appeal from an order of the district court which granted the petition of Willard R. Jacobson, respondent, for a writ of habeas сorpus, and under which order the respondent was discharged from the custody of appellant.
The events leading to this appeal started in Mountain Home, when respondent Jacobson, on February 28, 1964, commenced to issue what were asserted to be “no account” checks. On March 6, 1964, a criminal complaint in four counts was filed charging Jacobson with the felony of issuing checks withоut funds. Elmore County officials determined respondent had been arrested by Ada County authorities and had been incarcerated in the Idaho State Penitentiary, for violation of terms of his probatiоn. On July 24, 1964, they forwarded to the penitentiary a request that respondent be held for them upon his discharge, this procedure being called a “hold” order.
In February, 1965, an order of the district court was entered authorizing officials of the penitentiary to deliver respondent to the custody of the Elmore County Sheriff. Upon delivery of respondent to the sheriff, pursuant to this order, he was arrested on February 24, 1965, under a warrant of arrest.
While in the penitentiary, respondent wrote two letters, one on September 29, 1964, and the other on December 18, 1964, to the Elmore County Prosecuting Attorney, requesting that hе be given a speedy trial.
On March 4, 1965, a preliminary hearing was held and respondent was bound over to district court to answer the charges of the complaint.
On May 4, 1965, respondent petitioned thе district court in this action for a writ of habeas corpus. The writ issued, directing appellant' to produce the respondent, who made his return to the writ, alleging that respondent was held by him pursuant to thе order of commitment entered following preliminary hearing.
A hearing was held, and the trial court, after entering a memorandum decision, issued the order of discharge from which this appeal is taken.
Summarized, appellant’s assignments of error are that the trial court erred: in determining that respondent had not been given a speedy trial, and in discharging him by reason thereof; in ruling there were two diffеrent guarantees of a speedy trial and that the statutory guarantee of a speedy trial was accorded respondent, but that the constitutional guarantee was not; in considering the timе elapsed between the criminal complaint to the time of arrest in determination of whether respondent was accorded a speedy trial.
Idaho Constitutional provisions and statutоry provisions involved are set out in the footnote below. 1
*13
In Ellenwood v. Cramer,
“The right of a defendant to а speedy trial was recognized at common law and this right has been embodied in our Constitution. Idaho Statutes, Sec. 19-3501, I.C., has defined in substance what is meant by a speedy trial, that is, one accused of сrime should be tried not later than the next term of court subsequent to being held to answer, unless the trial is postponed upon defendant’s application, or with his consent, or other lawful, valid reasоn.
* * * * * *
“One accused of crime is entitled to he' tried under fixed standards and rules, free from capricious and oppressive unnecessary delays and with reasonable diligence. * * * ”
In Schrom v. Cramer,
The trial court, in its memorandum opinion, pointed out that respondent was arrested and held to answer during the same term of court, and it appears that trial date was set during the same term. The cases of Ellenwood v. Cramer and Schrom v. Cramer, (bоth supra), dealt with a different question. Here, the issue is presented whether, when an accused is incarcerated in the state penitentiary, the time intervening between the filing of the criminal complaint to the time he is arrested, should he computed in determination of whether the accused was being afforded a speedy trial. The trial court in its memorandum opinion, following what is denominatеd as the majority rule, held that the time between filing of the charge and arrest must be computed, and ordered respondent’s discharge.
There is no reporter’s transcript of the district court’s proceedings of this cause, and it is impossible to say just when the authorities of Elmore County had notice of Jacobson’s whereabouts, but it is undisputed they knew he was in the penitentiary by at least July 24, 1964, the date the “hold” order was issued at their request. The fact that the respondent was incarcerated in the penitentiary cannot be asserted as an excuse for denying an accused person а speedy trial, at least when the accused has sought to have his cause tried. 21 Am.Jur.2d 284, Criminal Law § 249. As stated by the author of the annotation on this point,
“The general rule, followed in the majority of the states and in the Federal courts, is that, under a constitutional provision guaranteeing to accused a speedy trial, and under statutes supplementing the constitutional provisions and enacted for the purpose of rendering it effective, and prescribing the time within which accused must be brought to trial after indictment, a sovereign may not deny an accused person a speedy trial even though he is incarcerated in one of that *14 sovereign’s penal institutions under a pri- or conviction and sentence in a court of that sovereign.”
In Harris v. Municipal Court,
“It [the constitutional provision] reflects the letter and sрirit of the following provision of the Federal Constitution to the same effect: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. * * * ’ U.S. Const., Amend, art. 6, § 1.”
See also: Ex Parte Alpine,
Our constitutional provision makes no distinction as to type of cases in which the right to speedy trial is guaranteed, but provides it for
“all criminal prosecutions".
It further provides that the “party accused” is granted this right. A party is accused when a criminal complaint is filed against him. People v. Aquirre,
Under the facts as presented by this record, the trial court did not err in its determination that the respondent was not accorded a speedy trial. The order of the trial court discharging the defendant is affirmed.
Notes
. Art. 1, § 13: “In all criminal prosecutions, the party accused shall have the right to a speedy and public triаl ***.”
Art. 1, § 18. “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sаle, denial, delay or prejudice.”
I.C. § 19-106: “In a criminal action the defendant is entitled:
“1. To a speedy and public trial.
“2. * * *
*13 I.C. § 19-3501. “The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following eases:
“1. When a person has been held to answer for a public offense, if an indictment is not found against him at the newt term of the court at which, he is helé to answer.
“2. If a defendant, whose trial hаs not been postponed upon his application, is not brought to trial at the newt term of the court in which the indictment is triable, after it is found.” (Emphasis supplied.)
I.C. § 19-402: “A prosecution for any other felony than murder must be commenced by the filing of the complaint or the finding of an indictment within three years after its commission.”