141 P. 570 | Ariz. | 1914
This appeal is prosecuted from an order refusing to discharge appellant upon habeas corpus. The appellant was charged by information with one Yoshida of an assault with intent to kill one Wing Lee with a knife. Tiie information was filed September 13, 1912. Appellant
The appellant contends that paragraph 1158, Penal Code of 1901, paragraph 1274, subdivision 2, Penal Code of Arizona of 1913, and section 24, article 2, of the state Constitution, entitle him to his discharge upon his application, unless, for good cause shown, he is not given a trial within 60 days after the motion for a new trial was granted. The record discloses that the order'granting a new trial was made on October 19, 1912, and appellant’s application for discharge was made Feb
Section 24 of article 2, Constitution, provides that:
“In criminal prosecutions, the accused, shall have the right . . to have a speedy public trial by an impartial jury of the county. ...”
The legislature defines and limits the meaning of a “speedy” trial. Paragraph 1274, Penal Code of 1913, provides :
“The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: . . .
“(2) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment or the filing of the information.”
The attorney general, upon the part of the prosecution in this court, makes no contention in support of the order involved.
The fact appearing that one trial was had and the result vacated on October 19, 1912, is a sufficient cause shown why appellant was not awarded a fair and impartial trial up to that date. But such failure of trial is no cause why the appellant has been deprived of his liberty without his consent an additional 95 days. If good cause therefor existed, the prosecution would have shown it, is readily to be inferred. "We must presume that the sworn officers of the law will perform their official duties, and certainly it was the official duty of the county attorney to show such cause as existed why this action had not been prosecuted. No good cause existed we must conclusively presume.
California has substantially the same constitutional guaranty found in our Constitution and a statute identical with ours above quoted. Article 1, sec. 13, Cal. Const.; paragraph 1382, Cal. Pen. Code. In Re Begerow, 133 Cal. 349, 85 Am. St. Rep. 178, 56 L. R. A. 513, 65 Pac. 828, the supreme court had before it the identical question here presented, arising upon habeas corpus when a mistrial was had and 84 days elapsed thereafter before any further trial was prosecuted. After considering the authorities on the question, the court says:
No other just, fair meaning can be given these provisions of the law.
The order is reversed, and the defendant is ordered discharged and the cause dismissed.
FRANKLIN, C. J., and ROSS, J., concur.
NOTE.—The authorities on the question of the delay of prosecution as ground for the discharge of the accused are gathered in a note in 56 L. R. A. 513.