44 Colo. 384 | Colo. | 1908
delivered the opinion of the court:
Defendant was proceeded against by information before a justice of the peace for a misdemeanor, and was fined. He appealed from the judgment and
In the county court of the city and county of Denver, to which judgment this writ was prosecuted, there are six regular terms of court commencing on the first. Monday in the months of January, March,
It needs no argument to demonstrate that the facts set out in this record, and embraced in the motion for a discharge, bring the case squarely within the provisions- of the statute as interpreted in the cases cited.' The attorney general concedes this and that defendant might be entitled to his discharge had he not lost such right by waiver. The argument is that because defendant appeared in court when the trial order of November 16th was vacated and consented that a hearing might be had as of November 14th, instead of November 16th. He therefore lost the right to insist upon his discharge because of
When defendant appeared in court on the 14th of November and the motion for discharge was heard, it is evident that neither the court nor counsel considered that defendant waived his right to insist on the motion by consenting that it should be heard on the 14th rather than on the 16th of November. The statement of the district attorney is set out in the record, and it clearly appears therefrom that his argument against the motion was based solely upon the assertion, which, though it may be true, is, unfortunately for him, negatived by the record that the prosecution was at all times ready for trial and that the continuances were not made on its motion. There was no suggestion below that defendant’s right to insist upon the motion was waived by his consent to have it heard two days before the time fixed for trial by the last previous order of the court. It also clearly appears that a copy of the motion for a discharge was received by the district attorney
• It, therefore, clearly appearing that defendant’s trial did not occur for more than three terms after his arraignment in the county court,- and it further appearing that no showing for a continuance to the third term was made by the district attorney, and that defendant has not lost his rights by a waiver, it necessarily follows that the motion for the discharge should have been granted. The judgment is therefore reversed and the cause remanded, with instructions to the trial court to enter an order-setting the defendant at liberty. Reversed.
Chief Justice Steele and Mr. Justice Gabbert concur.