Butts v. Commonwealth
Decision Date | 17 June 1926 |
Citation | 133 S.E. 764 |
Parties | BUTTS . v. COMMONWEALTH. |
Court | Virginia 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:
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:
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:
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:
—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:
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TABLE OF CASES
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