State v. Dewey , 73 Kan. 735 ( 1906 )

The opinion of the court was delivered by

Porter, J.:

In the first of these cases appellants were charged with assault with intent to kill Roy Berry, in the second with murder in the first degree for the killing of Alpheus W. Berry, and in the third with murder in the first degree for the killing of Daniel P. Berry.

On May 1, 1905, the first day of the regular May term of court, appellants filed motions in each case, under section 221 of the code of criminal procedure (Gen. Stat. 1901, § 5666), asking to be discharged on the ground that more than three, ter ms of court had elapsed after indictment without their having been brought to trial. On the 2d day of May these motions were denied; at the same time, upon the request of the county attorney, and over the objections of appellants, the court entered ah order in each case dismissing it “without prejudice.” Exceptions were saved, and the appellants bring the causes here for review. Error is alleged in the rulings on the motions of appellants and in the entering of the orders requested by the county attorney.

The record in each case discloses that the information was filed in the district court of Cheyenne county on December 2, 1903. On the application of defendants the venue was changed to Norton county, and a certified copy of the information was filed in the district court of that county January 12, 1904. The regular February term of the district of Norton county convened February 1, 1904, and at this term the cases were continued by the court. At the regular May, 1904, term of the court orders were entered for continuances over the term on account of there being no jury in attendance, none having been called. On the last day of the regular September, 1904, term of the court continuances were ordered by consent of the parties. The regular February, 1905, term of court convened February 6, 1905, at which time defendants appeared and announced themselves ready for trial, and the cases were passed until a later day. Afterward they were continued over the term, defendants being present and making no objection. The defendants were on bail during all the time from the filing of the informations.

There are two questions raised: (1) Whether the court erred in denying the applications of appellants to be discharged; (2) whether error was committed in dismissing the actions without prejudice. The consideration of the first will necessarily dispose of the second. Our statute reads as follows:

“If any person under indictment or information for any offense, and held to answer' on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to such offense, unless the delay happen on his application or be occasioned by the want of time to try such cause at such third term.” (Gen. Stat. 1901, § 5666.)

There is some diversity of opinion among the members of the court with respect to the proper construction to be given this statute. According to one view, the words “before the end of the third term of. court”' refer to a distinct period of time measured by the first three successive terms of court, and if at the end of the third term the person under indictment be not entitled to claim the benefit of the statute because delay has happened on his application, or for want of time to try the cause, then a new period of like duration begins; the slate is wiped clean, and the state has another three-term period in which to bring him to trial. Under this theory single terms of court are not counted against the state and in favor of the accused. Another theory counts the first, second and third terms. If the accused ask for a continuance at the first, second or third term, or the delay at either of them be occasioned by want of time to try the cause, that particular term is not counted, and the state has an additional term in its stead in which to bring him to trial. Another view gives all importance to “such third term,” and regards what transpired at the first or second as of no consequence. If at the end of the third term he be not entitled to claim the benefit for the reason that the delay at that term happened on his application, the state has another term in which to bring him to trial. In The State v. Campbell, ante, p. 688, it was held that the terms of court intervening while an appeal by the state is pending should not be counted, although .the statute makes no exception in such a case.

In the cases at bar we are not left in doubt as to the theory of the trial court in refusing to discharge the appellants. The orders recite that the court held that if the applications should be presented at the last day of that term, or the first day of the following term, they would, be granted. The court apparently considered that, appellants were not entitled to count the third regular term of court for the reason that they consented to a continuance at that term, and'were likewise not entitled to count the fourth for the reason that they were present and made no objection to the causes being continued at that term.

There is no diversity of opinion that in any view of the statute the appellants were not entitled to be discharged at the time their application was presented. A defendant may waive his rights under the statute. He may do this by consenting to, or by failing to object to, a continuance at the third or subsequent term. The court therefore committed no error in refusing to discharge the appellants. The regular third and fourth terms of court are not to be considered as terms at which they should have been brought to trial.. In the one they consented to a continuance; in the other they were present and made no objection when the continuance was ordered.

Under a statute which has been construed so liberally as this has been — to mean that when discharged under it a defendant is to be deemed as acquitted of the charge against him (The State v. Edwards, 35 Kan. 105, 10 Pac. 544), we think 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. A defendant under indictment who consents, or raises no objection, to his case being continued is not within the purpose and intention of the law. Delay does not hurt him; often it serves his purpose better than a speedy trial. The judgment is affirmed.

SYLLABUS BY THE COURT. Criminal Law — Continuance — Discharge—Statute Construed. In determining whether a person under indictment and held to bail is entitled to be discharged under section 221 of the • code of criminal procedure (Gen. Stat. 1901, § 5666), it is proper to count the terms of court held after indictment found or information filed, omitting any term at which the delay happened upon his application. Any term at which he has consented to the delay or postponement cannot be claimed as one at which he should have been brought to trial; but a postponement or delay ordered by the court cannot be regarded as happening on his application merely because he fails to object. All the Justices concurring.