Butts v. Commonwealth

Decision Date17 June 1926
Citation133 S.E. 764
PartiesBUTTS . v. COMMONWEALTH.
CourtVirginia Supreme Court

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Speedy Trial.]

Error to Circuit Court, Norfolk County.

Louis Butts was convicted of attempt at robbery, and he brings error. Reversed, and verdict set aside, and case remanded, with directions.

Vincent L. Parker, of Portsmouth, and Win. G. Maupin, of Norfolk, for plaintiff in error.

Jno. R. Saunders, Atty. Gen., and Leon M. Bazile and Lewis H. Machen, Asst. Attys. Gen., for the Commonwealth.

BURKS, J. Louis Butts, the plaintiff in error, was convicted of attempt at robbery, and sentenced to the penitentiary for two years. The verdict of the jury was found on the 12th day of February, 1923, and a motion was promptly made for a new trial, but was not passed on until the 21st day of November, 1925, when the judgment here complained of was entered.

The following errors are signed:

"First. The court erred in entering judgment on the verdict on November 21, 1925, because the accused was then entitled to be forever discharged from prosecution for the offense for which he was indicted.

"Second. The court erred in overruling the motion of the accused to set aside the verdict as contrary to the law and the evidence, because the evidence shows that there was no robbery or attempted robbery by the accused.

"Third. The court erred in admitting parol evidence of Zimmer and Carey as to the contents of the time card."

Section 8 of the Constitution guarantees to every one accused of crime a "speedy trial." Similar provisions, constitutional or statutory, exist in most if not all, of the states. They are said to be based on the English Habeas Corpus Act. Beale's Crim. P1. & Pr. § 212.

In Re Begerow, 133 Cal. 349, 65 P. 828, 56 L R. A. 513, 85 Am. St. Rep. 178, it is said:

"It is well to remember that this case involves fundamental rights, and is of universal inter-est. Around those rights the English have waged their great battle for liberty. Without the narration of the conflicts to which they have given rise, the history of the English people would be a dull affair. The right of the government with reference to persons accused of crime has been, and is yet, a matter of great consideration. It led to the agitation which wrung from power the Great Charter, the Petition of Right, and the Habeas Corpus Act. All the great achievements in favor of individual liberty, of which the English people are so justly proud, may be said to have come through contests over the rights of persons imprisoned for supposed crime."

This right of personal liberty, of freedom from oppression under color of the law, acquired at such a price, has been carefully safeguarded by the Constitution of this state and has constituted a part of its bill of rights from the earliest history of the commonwealth, and its enforcement is not less important to-day than it was then. The provision, however, must have a reasonable interpretation. A "speedy trial" does not entitle the accused to an immediate trial. The state is entitled to a reasonable opportunity to fairly prosecute its charge against the accused. All that can be asked is that the trial shall take place as soon as practicable after the indictment is found and the state has had a reasonable opportunity to prepare for the trial. Any time after this, a rising from negligence or laches on the part of the prosecution, without fault or participation on the part of the accused, and without his consent, is a violation of the constitutional provision. The provision, however, as we shall see, is not self-operative. It may be claimed, or it may be waived.

What constitutes a "speedy trial" within the meaning of the Constitution has been interpreted by the Legislature in section 4926 of the Code, the substance of which has long been a part of the statute law of this state. That section declares:

"Every person against whom an indictment is found charging a felony and held in any court for trial, whether he be in custody or not, shall be forever discharged from prosecution for the offense if there be three regular terms of the circuit or four of the corporation or hustings courts in which the case is pending after he is so held without a trial unless the failure to try him was caused by his insanity or by the witnesses for the commonwealth being enticed or kept away or prevented from attending by sickness or inevitable accident, or by continuance granted on the motion of the accused, or by reason of his escaping from jail or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict, or where there be no court held at the regular term, or where there is court held and for any reason it would be injudicious in the opinion of the court to have jurors and witnesses summoned for that term, which reason shall be specially spread upon the records of the court; but the time during the pendency of any appeal in any appellate court

shall not be included as applying to the provisions of this section."

This legislative interpretation has often been approved by this court. Com. v. Ad-cock, 8 Grat. (49 Va.) 661; Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676; Nicholas v. Com., 91 Va. 741, 21 S. E. 364; Benton v. Com., 91 Va. 786, 21 S. E. 495; Kibler v. Com., 94 Va. 804, 26 S. E. 858; Wadley v. Com., 98 Va. 803, 35 S. E. 452.

The section quoted affords protection against two very grave wrongs: unnecessary imprisonment and unnecessary delay in bringing the accused to trial, whether in custody or not. At present we have to deal only with the latter. The statute gives the commonwealth three regular terms of a circuit court after the accused is held for trial within which the commonwealth may afford such trial.1 The term at which the indictment is found is excluded from the calculation (Kibler v. Com., supra), and after this the commonwealth has three regular terms of the circuit court, at any one of which the accused may be tried without offering any excuse for delay; but, after the expiration of these three terms, unless the commonwealth shall bring herself within the exceptions mentioned in section 4926, the statute provides that the accused "shall be forever discharged from prosecution for the offense." In other words, it is a legislative pardon for the offense if the trial is not had within the time prescribed by the statute; but the accused never availed himself of the provision made for his benefit.

It is earnestly insisted that the trial mentioned in the section must be a completed trial in which final judgment must be entered not later than during the third term aforesaid. Many cases have been cited defining the word "trial, " but they throw little light on the meaning of the word as used in the section quoted. The object of the statute is to secure a "speedy trial, " and where the accused is actually brought to trial within the time required by the statute, but from some adventitious cause, without fault on the part of the commonwealth, or where a further delay for a reasonable time is necessary to consider some motion or application of the accused, so that final judgment cannot be entered during such term, the statute has been sufficiently complied with. In enumerating certain exceptions to the operation of the statute, it was not intended to exclude others of a like nature, nor delays made necessary by motions or other applications of the accused. Wadley v. Com., supra.

In the instant case, the delay between the rendition of the verdict and the final judgment was thirty-three months, and the record discloses no reason for the delay. We do not doubt that, if the statute had providedthat a trial might have been deferred for that length of time, it would have violated the constitutional provisions for a "speedy trial." The withholding of judgment by the trial court for that length of time, without reason or excuse therefor, was equally a violation of the constitutional right of the accused, and, if he had claimed his right, it should have been accorded him, but he did not do so, and must be deemed to have waived it. He could have moved the trial court for a discharge from further prosecution for the offense, as was done in Sands v. Com., 20 Grat. (61 Va.) 800, and Kibler v. Com., supra; or he could have applied to this court for a mandamus to have compelled the trial court at an earlier date to proceed to judgment, or for a writ of habeas corpus, as was done in Davis v. Davis, 112 Va. 904, 73 S. E. 946. But he did neither, and now asserts his right to a discharge from prosecution for the first time in this court, on a record involving the merits of his case. The application for the discharge is wholly distinct from, and independent of, the case on its merits, and the failure to invoke the operation of the constitutional provision was a waiver of the protection afforded thereby.

In Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676, it is said "that a prisoner may waive many of his constitutional rights is beyond a doubt."

In Kibler v. Com., 94 Va. 804, 811, 26 S. E. 858, 859, construing this statute, it is said:

"There are-rights which the prisoner can waive neither by counsel nor in person. * * * There are other rights which the prisoner may waive either in person or by counsel. They are the mere incidents connected with the conduct of his trial, "

—and these include consent to a continuance which would prevent the operation of section 4926 of the Code.

In State v. Kellison, 56 W. Va. 690, 692, 47 S. E. 166, it is plainly intimated, if not decided, that the constitutional privilege of a "speedy trial" must be claimed or else it will be deemed to have been waived, and that the claim comes too late after trial and conviction.

In 8 R. C. L. 74, it is said:

"The right of the accused to a discharge for the failure of the prosecution to put him on trial within the required time may be...

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