State v. Smith , 70 S.D. 402 ( 1945 )

The only question presented on this appeal is the meaning of the language used in SDC 34.3304 which provides that when a jury trial is demanded in a criminal action "the action shall be tried at the next regular term of court." The majority opinion states that: "If accused demands a jury trial the action must be set down for trial at the next regular term and this refers to the regular term succeeding the one at which the demand is made." In this case the defendant was held to answer at the January term. The information was filed, and he was arraigned at the February term, and at that time he demanded a jury trial. According to the majority opinion the defendant could not have been tried until the March term.

This court has said that statutes using the phrase, next term of court, and similar language in relation to the filing of informations and the time of trial of criminal actions, are to be construed as providing for "a speedy public trial" as guaranteed by the constitution. It was said in the case of Colvin v. Callahan, 46 S.D. 221, 191 N.W. 948; 949, that:

"If there be doubt as to the meaning of said section 4807, such doubt ought, in view of these sections of the Bill of Rights, to be construed favorably to a speedy trial. * * * If an accused is bound over during the pendency of a term of circuit court the information should be filed at that term. In the present case the October, 1922, term of the circuit court of Stanley county is ``the next term of court at which' these plaintiffs were held to answer * * *."

In my opinion the majority of the court decided this case contrary to the rules stated in the Callahan case. Instead of construing the statute so as to permit a trial at the earliest regular session of the court at which the case could be tried, and not later than at the next succeeding term, the opinion interprets the statute to mean that the defendant may not be tried until the court convenes at a regular term which has not yet commenced. If the statute were given the construction indicated by the Callahan case, the right to a speedy trial would be preserved, and at the same time the right of the defendant to ample time in which to prepare for trial would be protected by the provisions of law allowing postponements. For these reasons it is my opinion that the judgment should be affirmed.