State v. Jenkins

I am unable to agree with the majority holding that appellant was not entitled to have the case dismissed. The information was filed October 16, 1942. December 18, 1942, the accused filed a motion to dismiss for failure of the state to bring the case to trial within sixty days. The motion was denied December 21, 1942, upon the ground that "no jury has been on duty in connection with the court since the date that the information was filed." Appellant was not brought to trial until March 18, 1943. Our state constitution provides:

"Justice in all cases shall be administered openly and without unnecessary delay." Const., Art. I, § 10.

"In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, and the right to appeal in all cases; and in no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed." Const., Art. I, § 22.

Rem. Rev. Stat., § 2312, provides:

"If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown."

The legislature of this state has determined for us what, in certain cases at least, is to be regarded as a speedy trial within the meaning of the constitutional requirements. The statutory provision simply means what it says, that the trial must be had within sixty days after the filing of the information. The legislative purpose in passing such legislation is set out in 22 C.J.S., Criminal Law, p. 716, § 467, as follows:

"The term ``speedy,' as employed in the constitutional provisions under consideration, being a word of indeterminate meaning, permits legislative definition to some extent, and the authorities generally hold that statutes providing for a discharge of accused unless trial is had within a stated time after indictment, information, or commitment, or which require an indictment or information within a stated time, are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision, and must be construed fairly to the accomplishment of that end."

The statutory provisions were enacted for the purpose of enforcing the constitutional right and must be construed in favor of the accused. Ex parte Hollandsworth, 93 W. Va. 543,117 S.E. 369.

State v. Brodie, 7 Wash. 442, 35 P. 137; and State v.Lewis, 35 Wash. 261, 77 P. 198, were properly decided.

The Brodie case came to this court upon these facts: The defendants had not been brought to trial within sixty days after the information was filed. The petition for habeas corpus then set forth:

"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 charge 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 same 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."

In the cases of State v. Vukich, 158 Wash. 362, 290 P. 992, and State v. Winchell, 14 Wash. 2d 420, 128 P.2d 643, the trial courts gave the identical reason for denying the motion that was repudiated in the Brodie case.

The majority opinion now approves those two cases without overruling either the Brodie or Lewis cases.

In State v. Lester, 161 Wash. 227, 296 P. 549, the trial court dismissed an information because the accused had not been brought to trial within sixty days. The state appealed. In deciding the case, this court said:

"The trial court gave to the statute a literal interpretation; holding that the filing of the information fixed the time from which the sixty-day period provided by the statute began to run, and that, if a defendant against whom an information was filed was not brought to trial within sixty days after such filing, no good cause to the contrary being shown, he was entitled to have the information dismissed.

"The state's learned counsel takes exception to the court's interpretation of the statute; contending that the sixty-day period fixed by the statute begins to run only from the time the defendant is taken into custody, or has been in some other manner subjected to the orders of the court.

"In our opinion, the court correctly interpreted the statute. Its language is plain and unequivocal, and will hardly permit of any other interpretation than that given to it by the trial court. The argument that such an interpretation can, in certain instances, amount to a denial of a trial altogether, we cannot concede is well founded. The statute applies to delays on the part of the state only."

As I view the situation, the fact that no jury had been on duty was no proper excuse. Rem. Rev. Stat., § 97 [P.C. § 8154], provides for the beginning of jury terms on the first Monday of each month, and gives the superior court judges the authority to call a jury at any time. The accused was entitled to have a jury called to try his case.

In some of the smaller counties of this state, jury terms have not been had for two or three years. Under the majority opinion construing the constitutional and statutory provisions, an accused could be held indefinitely if no jury were called.

A party charged with crime has the constitutional right to a speedy trial as that right is defined by statute, and the court has no discretionary powers to deny him a right so important, nor to prolong his imprisonment beyond the time provided by law. The fact that a new information could be filed after dismissal of the present charge presents no reason for a denial of a constitutional right.

The Vukich and Winchell cases should be overruled and appellant in this case should be discharged.