State v. Brodie , 7 Wash. 442 ( 1893 )

The opinion of the court was delivered by

Scott, J.

On the 11th day of September, 1893, the defendants were arrested on a charge of grand larceny and were, by a justice of the peace of Skagit county, upon an examination held by him .on the 13 th day of September, bound over to the next term of the superior court for trial. On the 18th day of said month the prosecuting attorney of said county filed an information against them accusing them of said crime. Said defendants were unable 'at all times to give bonds, and since said 13th day of September have been confined in the county jail of said county, riot having been brought to trial on said charge, and more than sixty days having elapsed since said information was filed against them, they petitioned for a writ of habeas corpus to obtain their discharge.

The petition sets up the facts above stated, and that the trial had not been postponed upon their application, and that they had not caused the delay thereof, but that they had at all times been ready and willing for trial upon the chai’ge aforesaid; that a jury term of the superior court for said county should have been held on the fourth Monday of September, and that another jury term of said court should have been held the first Monday of December in said year; that both of said times had passed since they had been informed against, and that no such jury had been called, and that no cause for delay or failure to call the sainé had been filed or placed of record, but that the court had postponed the calling of such jury from time to time without any sufficient cause therefor having been shown; and they also moved for a discharge under $ 1369, Code Proc.

The prosecuting attorney of said county demurred to the petition of the defendants, and on the 7th day of December, 1893, the same coming on for hearing, the court sustained said demurrer and denied the motion of the defendants for a discharge. Whereupon the defendants appealed.

The order denying the motion recites substantially that the prosecuting attorney had not, in behalf of the state, asked for any continuance of said action, but had always been ready for trial, but that said cause had not been tried for the reason that no term of court for which a jury had been called had been in session in said county since the filing of the information.

As the record stands, we are of the opinion that no sufficient cause appears for not having brought the defendants to trial, and in the absence of such cause they were entitled to their discharge under said section. The failure to call a juiy, without any good reason being made apparent why one was not called, was not sufficient to warrant holding them in custody beyond the time specified in said section.

Reversed, and remanded with a direction to discharge the defendants.

Dunbar, C. J., and Stiles and Anders, JJ., concur.