90 Kan. 802 | Kan. | 1913
Lead Opinion
The opinion of the court was delivered by
This appeal is from an order discharging the defendant from prosecution for robbery, because he had not been brought to trial before the end of the third term of the court held after the information was filed.
The statute provides for such discharge unless the delay happen on the defendant’s application or be occasioned by the want of time to try the cause at such third term. (Crim. Code, § 221.)
The reason for the failure to try this cause at the third term is stated in the order of continuance entered at that term, which recites:
“And the court finds that this case has not been tried at this term because of the illness of the county attorney, which prevented him from trying this case.”
The.motion for discharge was presented at the term to which the case was continued, and affidavits of the county attorney, his assistant and the defendant’s attorney were presented. ' These affidavits give in substance the history of the' case and its progress through the three terms, from which it appears that the third term was that of September, 1912, beginning September 3. At that term the presiding judge assigned civil causes for trial first, the criminal cases to follow, beginning on November 11. It was then believed by .the
The only reasons stated in the statute for continuing a prosecution beyond the third term are delays which happen on the defendant’s application, and want of time to try the cause. It has been held, however, that when a jury fails to agree, the term at which the mistrial occurs is eliminated from the computation. (The State v. Morgan, 84 Kan. 625, 627, 114 Pac. 846.) It has also been held that terms intervening while an appeal is pending should not be counted. (The State v. Campbell, 73 Kan. 688, 95 Pac. 784.) It was said in The State v. Dewey, 73 Kan. 735, 85 Pac. 796, that:
“Many courts have said that the enumeration of some causes for delay does not exclude all other causes, and have held that where the delay at the third term is occasioned by the illness or death of the trial judge or prosecuting attorney, or the occurrence of some unforeseen accident, the accused is not entitled to his discharge. (People v. Camilo, 69 Cal. 540; State v. Huting, 21 Mo. 464.) . Without passing oh that question, it is, we think, obvious that no cause for delay such as contemplated by the statute occurred in the present cases.” (p. 742.)
Illness of the presiding judge was held to be an exception under a similar statutory provision in California. (People v. Camilo, 69 Cal. 540, 11 Pac. 128.) The same ruling was made in Missouri under a statute containing the same exceptions as our own. (State v. Huting, 21 Mo. 464.) In Adcock’s Case, 8 Grat. (Va.)
“It might be enquired what would be done in a case where the prisoner was too sick to be tried within the three terms, or were to ask for a continuance, or did not choose to do so if he could. . . . The truth is the statute never meant by its enumeration of exceptions, or excuses for failure to try, to exclude others of a similar nature or in pari ratione.” (p. 681.)
Similar rulings were made in Stewart v. State, 13 Ark. 720, and State v. Mollineaux, 149 Mo. 646, 51 S. W. 462.
It was said in The State v. Dewey, 73 Kan. 735, 85 Pac. 796, that:
“Before a defendant is entitled to such an order he must bring himself clearly within the spirit and intention of the statute. Its purpose was not to enable the guilty to escape upon technicalities, but to shield the innocent by preventing unnecessary and unreasonable delays.” (p. 739.)
Guided by this just rule of interpretation we must inquire what is fairly comprehended in that clause of the statute excepting delays occasioned for want of time to try the cause. Circumstances may arise where the postponement of other and perhaps more important cases would leave sufficient time, although such postponements might be attended with great expense and possible failures of justice. The illness of the judge, referred to in'cases reported, already cited, may leave insufficient time. Illness of a juror might leave the time too short to finish a trial. These and like contingencies suggest that “the time to try the cause” means such time as should reasonably be given for that purpose consistent with the orderly assignment of causes and the diligent dispatch of business. The right of the defendant is. not to be frittered away by an arbi
This case was assigned for trial in the first division of the district court at the September term. At the following January term it was assigned in the second division. Presuming that the judge presiding in that division interpreted the statute as this court does, it must have been found from the affidavits presented that the previous finding that the case had not been tried because of the illness of the county attorney was, upon further consideration, found incorrect in fact, or that the finding only meant that the continuance, although caused by the illness, of that officer, might have been avoided if his assistants had been diligent in the discharge of their duties. It is the opinion of this court that the affidavits presented a question of fact upon which such a conclusion could be reached, and the facts having been so finally determined, the judgment must be affirmed.
Dissenting Opinion
(dissenting) : I construe the finding made at the September term to mean that the illness of the county attorney prevented the trial at that term, because it left insufficient time. No judicial reason is otherwise apparent for the recital. The illness of the prosecuting officer required no recital in the entry, unless it was the causé of the continuance, and it could not be a good cause unless the time left was insufficient for the trial. That'finding should govern unless the
