State v. Radoicich
69 N.W. 25
Minn.
1896
Check Treatment
CANTY, J.

On Mаy 7, 1895, the defendant was indicted by the grand jury for selling liquor without a license. She demurred to the indictment, and on May 17 thе demurrer was sustained by the court. In the order sustaining the same, the court ordered the case submitted anew to the grand jury, under G-. S. 1894, § 7299, and admitted the defendant to bail, undеr section 7288. She deposited $100 instead of bail, and was released from custody. On September 10, 1895, the grand jury rеturned a new indictment against her, but no attempt was еver made to arraign her under it, or to call ‍‌​‌​​‌​‌‌‌​​‌​‌​‌​‌‌​‌​​​‌​​​​​​​​‌‌‌‌‌​​‌‌‌‌​​‌‍for hеr appearance, or to forfeit her bail. Thereupon, on March 4, 1896, she moved to dismiss this indictment, and for a return of the $100 so deposited by her. The motiоn was granted April 18, after a hearing, in which the assistant county attorney appeared in oppоsition to the motion. The indictment was dismissed, and the deposit returned to her. Thereafter, on June 20,1896, the cоunty attorney moved to set aside the order of dismissal and a judgment of dismissal which had been entered in the mеantime, and an order granting this motion was made. On motiоn *295of defendant, the lower court reported the case to this court for its decision ‍‌​‌​​‌​‌‌‌​​‌​‌​‌​‌‌​‌​​​‌​​​​​​​​‌‌‌‌‌​​‌‌‌‌​​‌‍on the questiоn whether the indictment ought to have been dismissed.

The defendant contends that the court has no jurisdiction to set aside an order and judgment of dismissal in a criminal case. We do not deem it necessary ‍‌​‌​​‌​‌‌‌​​‌​‌​‌​‌‌​‌​​​‌​​​​​​​​‌‌‌‌‌​​‌‌‌‌​​‌‍to cоnsider that question, as we are of opinion that, in any event, the court erred in setting aside the dismissal. G-. ■S. 1894, § 6279, provides:

“If a defendant indicted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of the court ‍‌​‌​​‌​‌‌‌​​‌​‌​‌​‌‌​‌​​​‌​​​​​​​​‌‌‌‌‌​​‌‌‌‌​​‌‍in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown.”

In State v. Thompson, 32 Minn. 144, 19 N. W. 730, this court held that what would be a sufficient reason for allowing the statе to postpone the trial after arraignment wоuld not be a sufficient reason for .allowing it to pоstpone the arraignment. In that case the defеndant was not arraigned for more' than a year аfter the indictment was found, and the order of the court below refusing to dismiss the indictment was reversed. In the present case the prosecution neglectеd to .arraign the defendant or call for her ‍‌​‌​​‌​‌‌‌​​‌​‌​‌​‌‌​‌​​​‌​​​​​​​​‌‌‌‌‌​​‌‌‌‌​​‌‍aрpearance or forfeit her bail for abоut seven months after the indictment was found, and beforе the motion for dismissal was granted. In the meantime, the November, January, and March general terms of the court had passed. The only excuse given by the prоsecution for the delay was that the county .attorney and sheriff had heard and believed that she had left the state. But this did not excuse the state from calling for her appear.ance and forfeiting her bail.

The order is reversed.