State v. Lee , 185 Neb. 184 ( 1970 )

Carter, J.

The defendant was charged in the district court for Thayer County with breaking and entering an automobile with intent to commit larceny and with breaking and entering a gasoline service station building on July 7, 1968, with intent to steal property of value, in separate counts of the same information. Defendant was found guilty by a jury on count two of the information on May 15, 1969. On May 29, 1969, defendant was sentenced to the Nebraska Penal and Correctional Complex for a period of 1 year at hard labor. The defendant has appealed, claiming that he was denied a speedy trial and that his motion for a discharge from custody made before and at the commencement of the trial should have been sustained. The foregoing presents the principal issue orally presented to this court.

The chronology of events from the date of defendant’s arrest until the commencement of his trial in the district court is material to the issue raised. Defendant was arrested on July 7, 1968, and lodged in the Thayer County jail on July 8, 1968. On July 10, 1968, defendant appeared in county court and waived a preliminary hearing. His appearance bond was fixed at $1,500. On July 26, 1968, an information charging the offenses was filed in the district court. On August 2, 1968, defendant appeared in district court and requested court-appointed counsel. The county attorney objected to an appointment of counsel and the matter was continued to August 13, 1968, to permit the county attorney to reduce his objections to writing. On August 13, 1968, it was shown that defendant’s parents were able to provide counsel but they declined to do so. The. trial court thereupon refused to appoint counsel for defendant at state expense but did reduce his appearance bond to $1,000. On August 28, 1968, defendant was arraigned and he entered a plea of not guilty. Some indication was given that the trial would be had at the next jury term following the Bonebrake case as soon as the court could get to it, but not sooner than 3 weeks. Defendant for the first time filed a written application for the appointment of counsel and an affidavit in support thereof on February 6, 1969, in which he stated he had been held in jail continuously since July 7, 1968. At the regular call of the docket on February 19, 1969, the matter of the appointment of counsel for defendant was continued to March 7, 1969, at which time defendant’s written application for the appointment of counsel was overruled but no trial date fixed. On April 2, 1969, counsel was appointed for defendant who promptly filed a motion to dismiss because of a denial of defendant’s right to a speedy trial. The motion was set for hearing on May 2, 1969, and the trial set to begin on May 15, 1969. The motion to dismiss was heard on May 6, 1969, and taken under advisement. Defendant’s appearance bond was reduced to $500 and trial advanced to May 14, 1969. On May 13, 1969, the motion to dismiss was overruled. A motion to discharge defendant because of a denial of due process and the failure to appoint counsel prior to April 2, 1969, was filed the morning of the trial and it was overruled. Defendant again moved for a discharge for the failure of the State to afford due process and a speedy trial at the close of the State’s evidence. The motion was overruled, the case submitted to the jury, and a verdict of guilty returned. An appearance bond was furnished on May 16, 1969. After the conviction and sentence of the defendant, cash in the sum of $500 in lieu of an appearance bond pending appeal was furnished.

The defendant was confined in the county jail from July 8, 1968, to May 16, 1969, a total of 313 days from the date of his arrest until an appearance bond was furnished. From his arrest until his arraignment in the district court on August 28, 1968, a period of 52 days, the case proceeded expeditiously and in the usual course. It is the period from his arraignment until his trial, a matter of 259 days, that affords the basis of the claim that defendant was not afforded a speedy trial as required by the Constitution.

This case was tried within the statutory limitation of two terms of court provided by statute in cases where the defendant is held in jail pending a trial on the offense charged. § 29-1202, R. R. S. 1943. No contention isi made otherwise. Whether or not the defendant is entitled to be discharged for want of a speedy trial is therefore dependent upon all the facts and circumstances of the case. The prosecution at no time asked for any delay or contributed to any delay other than for time to file written objections to defendant’s application for the appointment of an attorney at the state’s expense on the ground that he was indigent which was granted and disposed of within 2 weeks. There is noi evidence in this record that defendant requested a more speedy trial although the defendant inquired of the court on August 28, 1968, when his case would come up for trial, to which inquiry the court replied that it could not be heard in less than 3 weeks but it would probably be in 4 or 5 weeks. The evidence is clear that the delay was not contributed to by either the prosecution or the defense.

On August 2, 1968, the defendant orally requested the appointment of counsel on the basis of indigency. No •written motion was made nor was an affidavit of indigency filed. The county attorney made no objection to the form of the request, but objected solely on the ground that defendant was not indigent. We deem the form of the request to have been waived when the county attorney directed his objections to the question of indigency only. On the taking of evidence on August 13, 1968, the court evidently determined that defendant was not indigent for the reason that his parents were able to provide counsel for defendant’s defense. Defendant testified on August 2, 1968, that he talked with his father who told him in effect that he got himself into the mess and that it was up to him to get himself out of it. The .court, in denying the request, evidently concluded! that indigency meant that defendant not alone was indigent but that any person to whom he is entitled to look for support must also be indigent. See, State v. Eberhardt, 179 Neb. 843, 140 N. W. 2d 802; Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 A. 141; Ex Parte Mays, 152 Tex. Cr. 172, 212 S. W. 2d 164.

On February 6, 1969, a written motion for the appointment of counsel at state expense was on file, accompanied by an affidavit of indigency. This was evidently done to comply with the conditions precedent to the appointment of counsel. There being no change of conditions, the motion was overruled on March 7, 1969. On April 2, 1969, the court in the interest of justice, as it stated, appointed counsel for the defendant. The matter of defendant’s right to counsel involved the taking of evidence and a determination of the legal right thereto. Whether the court’s conclusions were correct or erroneous, a matter which is unnecessary to decide, is not maternal here except as they contributed to the delaying of the trial. Certainly time consumed in their determination is excluded time in determining the limitations of a speedy trial.

We take note of the fact that the trial judge in the instant case was a nonresident judge assigned by this court to hear the oase because of the temporary disability of the local judge to hear the case. The record shows that from November 13, 1968, to April 14, 1969, nonresident district judges appeared and sat in the district court for Thayer County on 10 occasions. This is nothing more than an indication of the extent that the temporary disability of the local judge may have contributed to the delay of the trial in the instant case.

A defendant confined in jail pending his trial on criminal charges is entitled to be discharged solely because of lapse of time only when he is not tried before the end of the second term of court following the filing of the charge, pursuant to section 29-1202, R. R. S. 1943. The foregoing statute supplements the constitutional guaranty of a speedy trial and fixes the maximum limits of time for trial where a defendant has not contributed to the delay. Whether or not delay within the maximum limits of the statute requires a discharge of a defendant is dependent on whether or not the time was fair and reasonable in the particular case, a matter which is in the discretion of the court. Maher v. State, 144 Neb 463, 13 N. W. 2d 641. “* * * no general principle fixes the exact time within which a trial must be had to satisfy the requirement of a speedy trial. The right to a speedy trial is necessarily relative; * * 22A C. J. S., Criminal Law, § 467 (4), p. 24. In Critser v. State, 87 Neb. 727, 127 N. W. 1073, we said: “There is room for the exercise of sound discretion on the part of the trial court, always bearing in mind that the right to a speedy trial is the constitutional right of any citizen who is accused of crime.” In Svehla v. State, 168 Neb. 553, 96 N. W. 2d 649, we said: “* * * But the legislature has not undertaken to fix any minimum time in such matters. What is a fair and reasonable time in each particular case is always in the discretion of the court. No hard and fast rule can be applied in all cases.”

“In Shepherd v. United States, 163 F. 2d 974, it is said: ‘The constitutional guarantee of a “speedy trial” is intended to prevent the oppression of a citizen by delaying criminal prosecution for an indefinite time and to prevent delays in administration of justice by requiring judicial tribunals to proceed with reasonable dispatch in trial of criminal prosecutions. * * * A “speedy trial”, generally, is one conducted according to prevailing rules and proceedings of law, free from arbitrary, vexatious and oppressive delays. * * * The right of accused to discharge for failure to receive a speedy trial is a personal right which may be waived, and it ordinarily is waived if accused foils to assert his right by making a demand for trial, by resisting a continuance, by going to trial without objection that time limit has passed, or by failing to make some effort to secure a speedy trial.’ * * * We fail to find in the record any protest or objection made on the part of the defendant until he filed his plea in abatement on September 19, 1958. This plea in abatement refers to a ‘speedy trial.’ We fail to find in the record any request by the defendant for an immediate trial.” State v. Fromkin, 174 Neb. 849, 120 N. W. 2d 25. See, also, Annotation, 57 A. L. R. 2d, Speedy Trial— Loss of Right, § 10, p. 326.

“We do not approve a delay of two years in trying any defendant’s case. * * * The combination of circumstances here * * * negate any wilful failure on the part of court officials to give .defendant a speedy trial. Considering the reasons for the delay, the lack of prejudice to defendant from it, and his failure to demand a trial earlier, his Honor’s ruling that defendant’s right to a speedy trial had not been transgressed will not be disturbed.” State v. Hollars, 266. N. C. 45, 145 S. E. 2d 309. See, also, State v. Bruns, 181 Neb. 67, 146 N. W. 2d 786; State v. Ellis, 184 Neb. 523, 169 N. W. 2d 267; State v. Gau, 182 Neb. 114, 153 N. W. 2d 298.

There is no evidence in this record... that the' delay was arbitrary or oppressive. There is no evidence that either the prosecution or the defense contributed to the delay. There is no evidence that defendant demanded or requested a speedy trial or made any effort to obtain a speedier trial. There is no evidence of a willful failure by court or counsel to afford defendant a speedy trial. We find a want of prejudice to the defendant since the trial court made it clear that the time spent in jail awaiting trial was given full consideration at the time sentence was passed. Under the foregoing authorities and the discretion lodged with the trial court in such matters, we fail to find any abuse of discretion by the trial court and defendant’s denial of a discharge because of delay is affirmed.

Defendant complains that the sentence of 1 year in the Nebraska Penal and Correctional Complex is ex.cessive. The guilt of the defendant was established beyond question. No contention is made to the contrary. Before imposing sentence, the trial court held a hearing to explore the possibility of probation for the defendant. It was discovered that defendant had been in juvenile court on several occasions and that he had been fined in county court several times and that none of the fines had been paid. The sheriff testified that he held a warrant or detainer for the arrest of defendant for a breaking and entering charge in York County. The trial court announced that probation was not possible under such circumstances. The sentence was then imposed.

We point out that the sentence was the minimum for the offense of breaking and entering, and was imposed after giving full consideration of the time served in the county jail while awaiting trial. The sentence is not excessive.

Affirmed.