Bayless v. United States, 12683.

• Decision Date: 28 March 1945
• Docket Number: No. 12683.,12683.
• Citation: 147 F.2d 169
• Parties: BAYLESS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

147 F.2d 169 (1945)

BAYLESS v. UNITED STATES.

No. 12683.

Circuit Court of Appeals, Eighth Circuit.

February 8, 1945.

Rehearing Granted March 28, 1945.

Donald H. Latshaw, of Kansas City, Mo., for appellant.

Otto Schmid, Asst. U.S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

John Richard Bayless appeals in forma pauperis from his conviction and sentence to twenty years' imprisonment for robbing the Farmers & Merchants Bank of Mansfield, Mo., on the 2d day of November, 1937. The indictment, filed January 28, 1938, contained two counts, the first being laid under 12 U.S.C.A. § 588b (a), which denounces bank robbery accompanied by force or putting in fear, and the second under section 588b(b), which denounces such robbery accompanied by assault or putting lives in jeopardy. The jury found the defendant guilty on both counts and the sentence was upon each but to run concurrently. There was ample evidence to support the verdict, as two eye-witnesses long employed in the bank positively identified the defendant (whom they had seen in the bank on a prior occasion in September, 1937) as one of the three armed men who entered the bank on the date charged, menaced them with pistols shown to have been loaded, forced them to give up money belonging to the bank, seized and carried away $606.51 of such money, and on departing shut the witnesses up in the bank vault with "very little ventilation." Defendant also confessed the crime in writing.

But the prosecution was ably and conscientiously defended by counsel appointed by the court, and under appropriate assignments of error it is contended (1) that the defendant was denied his constitutional right to a speedy trial; (2) that he was twice put in jeopardy for the same offense; (3) that the indictment was defective; (4) that a requested instruction No. 2 was improperly refused; (5) that incompetent evidence was admitted; and (6) that defendant was compelled to be a witness against himself.

(1) It is not claimed that appellant was not speedily apprehended, indicted and arraigned after the bank robbery in November, 1937, but it appears that on January 31, 1938, when he was arraigned upon this present indictment, he pleaded guilty, and on that plea he was promptly sentenced to imprisonment. After his induction into the penitentiary at Alcatraz he applied for habeas corpus in April, 1939, again in January, 1942, and again in September, 1942. In the third proceedings he was awarded a writ which in May, 1943, discharged him from serving the sentence on the ground that the sentence was void because he had not had the assistance of counsel and had pleaded guilty in ignorance of his right to trial. He was thereafter promptly brought to trial on the indictment on July 12, 1943, after motion for dismissal, plea in bar and demurrer had been ruled against him. The time between his robbery and his trial to the jury was about five years and eight months and that lapse of time is said to evidence denial of the right to speedy trial. But it is not the law that the mere lapse of such period of time between commission of a crime and trial of an indictment therefor establishes denial of a speedy trial within the intendment of the sixth constitutional amendment. The amendment guarantees the legal right to an accused to demand and to be accorded a trial as soon as the orderly conduct of the business of the court will permit and one complaining of delay must affirmatively demand his right of trial. Frankel v. Woodrough, 8 Cir., 7 F.2d 796. The facts establish that appellant was accorded all the hearings to which he was entitled in orderly course and was not...