50 Ark. 49 | Ark. | 1887
On the 12th of April, 1887, appellant was indicted for “engaging in the business of selling liquors without paying the state and county tax.” On the next day the indictment was filed in court, and a bench warrant was issued for him pursuant to an order of the court, and he was arrested; and on the 21st of the same month “the indictment was called for trial,” and he objected in writing to being then tried, because the indictment was found at the term of court during which he was called for trial and he was not in custody or on bail at tne time he was indicted. But the court overruled his objection, and, he showing no other cause for postponement, forced him into trial; and he was convicted; fined $1,400; moved for a new trial, which was denied, and he appealed.
The only error assigned for reversal is, appellant was tried against his objection at the term he was indicted. He insists he was not subject to trial then, because he was not in custody or on bail at the time the indictment was found; and to support his contention relies upon Section 2185 of Mansfield’s Digest, which is as follows: “If the defendant is in custody, or on bail, when the indictment is found, the trial may take place at the same term of the court, on a day to be fixed by the court.”
There is a statute in this state which authorizes judges of circuit courts to hold a special term, at any time, for the trial of persons confined in jail. If the contention of appellant is correct, persons confined in jail under indictment found at the last term held previous to the special term, could not be tried at a special term so held, unless they were on bail or in custody when they were indicted, and the object of the special term would fail, in part, in accomplishment.
The constitution of this state declares “that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have been committed.” If it be true that a defendant arrested under a bench warrant is not subject to trial at the term he is indicted, unless he was in custody or on bail when the indictment was found, he cannot demand a trial as a right, at such term, because the prosecution against him does not stand for trial until the term following. The state certainly could not be forced into trial in a case continued by operation of law at a term previous to the term to which it stands for trial. For there would be no obligation or duty on the part of the state to prepare or be ready lor trial in such cause previous to such term; and it would be unjust and unfair to require the state to go into a trial at a time when the law does not require it to be prepared and when it is in fact not ready. So the construction placed on Section 2185, if correct, would make it a virtual denial of a speedy trial, and a violation of the spirit of the constitution.
There is no good reason why the accused in criminal prosecutions for felonies and aggravated misdemeanors =should not be tried at the' term at which they are indicted, if thereafter arrested during such term, which does not ¡apply to the defendant in custody or on bail when the indictment against him is found. . Both are entitled to a postponement or continuance for good cause shown.
In this cace appellant did not undertake to show any cause for continuance. It does not appear that he was prejudiced by the action of the court below in forcing him to to trial; and the judgment of the court must be affirmed.