City of Casper v. Wagner
| Decision Date | 24 May 1955 |
| Docket Number | No. 2667,2667 |
| Citation | 74 Wyo. 115,284 P.2d 409 |
| Parties | The CITY OF CASPER, Plaintiff and Respondent, v. Leo C. WAGNER, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
Clarence G. Cypreansen, R. N. Ogden, Casper, for appellant.
Allen H. Stewart, Casper, for respondent.
Leo C. Wagner, subsequently referred to herein as 'defendant' or 'appellant,' was on March 13, 1952, convicted in the municipal court of the city of Casper, usually designated subsequently as 'plaintiff' or 'respondent,' of a violation of Section 9-365 of Ordinance No. 1042-A, Revised Code of the said City of Casper, the violation charged being the driving of a motor vehicle upon the streets of said city while under the influence of intoxicating liquor.
The police justice before whom the case was brought found Wagner guilty and ordered him to pay a fine of one hundred dollars. The defendant gave oral notice of appeal which was followed by a written notice to the same effect, and a recognizance was given in the sum of one hundred and ten dollars as fixed by the police justice. These papers together with the transcript of the entries on the police justice's docket were filed in the District Court of Natrona County on March 20, 1952. Under this recognizance, the defendant was set at liberty and at all times herein has been free and as far as the record shows has not complied with the order of the municipal police justice.
On March 13, 1954, the defendant filed in said district court a motion that an order be granted therein discharging the defendant 'so far as relates to the offense herein charged, for the reason defendant has not been brought to trial before the end of the third term of this Court in which this cause is pending * * *.' As a matter of fact, it appears that four terms of the district court had elapsed since the date of the trial in the municipal court. The motion of the defendant in this respect stated also that such delay was 'without application of the defendant.'
On April 10, 1954, the plaintiff through its city attorney filed in said district court its motion for the dismissal of said appeal upon the ground that the 'defendant * * * has failed to diligently prosecute' this appeal thus taken.
On the date last mentioned, the district court sustained the plaintiff's motion and dismissed the defendant's appeal. The defendant then appealed the cause to this court, making complaint of the order of dismissal last mentioned.
The appeal procedure from a decision of a police justice in the first class cities of this State 'shall be as prescribed for appeals from courts of justices of the peace in criminal cases.' See Section 29-252, Wyoming Compiled Statutes, 1945. Article 2 of Chapter 15, W.C.S.1945, supplies the authority for appeals to the district court from justice of the peace courts.
Section 15-207, W.C.S.1945, provides the cause shall stand for trial anew in the district court with that court exercising full power over the case, the justice of the peace, his docket entries, and his return.
Section 15-208, W.C.S.1945, directs that:
'No appeal from the judgment of a justice of the peace in a criminal case, shall be dismissed, except in the following cases:
'First--Where the supposed offense set out in the information shall not be an offense under law;
'Second--When there shall be no sufficient charge of an offense.
The district court in the case at bar had before it for construction neither of these two cases.
The defendant relies upon the provisions of Section 10-1313, W.C.S.1945. That section reads as follows:
But this section of the statutes is not available to the defendant in this case. He had already been given a trial in the municipal court. It is not contended that the defendant's trial was not a speedy one, and it is to be noted that the defendant had been found guilty by the police justice. The defendant never at any time after the cause was pending in the district court requested that court for a trial of the issues disposed of by the judgment of the police justice. He did nothing but wait for the time to elapse so that he could seek to invoke the quoted section above, Section 10-1313, W.C.S.1945.
In Hottle v. District Court in and for Clinton County, 233 Iowa 904, 11 N.W.2d 30, 35, the court said in part:
'In the case of Pines v. District Court, supra,' (233 Iowa 1284, 10 N.W.2d 574), 'we overruled the case of Davison v. Garfield, 221 Iowa 424, 265 N.W. 645, and re-established our former rule, that is the clear weight of authority '* * * that a demand for trial, resistance to postponement, or some other effort to secure a speedy trial must be made by one charged with a crime, by indictment or information, to entitle him to a dismissal of the charge, under either the constitution or statutory provisions involved herein.' The authorities are divided upon whether the constitutional and statutory guarantees of speedy trial are waived by failing to demand trial when the defendant is serving a sentence for another offense. In Fulton v. State, 178 Ark. 841, 12 S.W.2d 777, 778, the court stated: '* * * as it is stipulated that appellants have not been brought into open court and put upon trial, or given an opportunity to demand a trial we hold that these men, who have had no opportunity to demand a trial, should not be regarded as having waived this valuable right.'
'In State v. McTague, 173 Minn. 153, 216 N.W. 787, 788, the court first stated: But the Minnesota Supreme Court held in this case: 'The spirit of the law is that the accused must go on record in the attitude of demanding a trial or resisting delay. If he does not do this, he must be held, in law, to have waived the privilege. Until he has so acted, the state is not called upon to establish the existence of the statutory
'The rule of the Minnesota Supreme Court is probably the majority rule. In 22 C.J.S., Criminal Law, § 469, p. 719, the general rule is: By a note to this rule the author states: 'The text rule applies to persons serving sentence on other charges.'
The same court in Ferguson v. Bechly, 224 Iowa 1049, 277 N.W. 755, 757, 758; State v. Ferguson, 226 Iowa 361, 283 N.W. 917, referring to a previous case in the same jurisdiction, State v. Rowley, 198 Iowa 613, 198 N.W. 37, 199 N.W. 369, with reference to a somewhat similar statute as Section 10-1313, W.C.S.1945, said that:
'As stated in the Rowley case, supra, 'The statute * * * is not intended 'as a sword for offense." And we are inclined to the belief that it is being so used in the present instance. We cannot conclude that the Legislature ever intended this statute to be used as a scheme whereby a defendant might avoid trial through successive terms, through technicalities or maneuvering, and then say to the court, 'I did not get a speedy trial to which I am entitled and you must therefore dismiss the indictment against me.''
Section 470 of 22 C.J.S., Criminal Law, p. 720 states that:
'Accused waives his right to a discharge or to a dismissal of the prosecution by reason of the delay in bringing him to trial if he does not make a proper application therefor.'
The Supreme Court of Appeals of Virginia in Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764, 766, discussing the term 'speedy trial' said in part that:
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Harvey v. State
...remanded or admitted to bail, as the case may require. For further discussion of this provision, see: Casper, City of, v. Wagner, 74 Wyo. 115, 284 P.2d 409 (1955); State v. Levand, 37 Wyo. 372, 262 P. 24 (1927); State v. Keefe, 17 Wyo. 227, 98 P. 122 (1908); and Note, The Obligation of Secu......
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...353(14, 15), State v. Jestes, 75 Wash.2d 47, 448 P.2d 917(5, 6), State v. Dinger, 51 N.D. 98, 199 N.W. 196(1), and City of Casper v. Wagner, 74 Wyo. 115, 284 P.2d 409. This court has said that '(s)tatutory enactments of this nature may be waived by a defendant, being enacted for the benefit......
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Shafsky v. City of Casper
...As to defendant's first claim, it is conceded that the order of dismissal was based upon this court's holding in City of Casper v. Wagner, 74 Wyo. 115, 284 P.2d 409. In that case it was held that the defendant's failure to bring his appeal on for trial within three terms of the district cou......
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Cherniwchan v. State, s. 5024
...an implied abandonment of the defendant's right to speedy trial. Shafsky v. City of Casper, Wyo., 487 P.2d 468 (1971); City of Casper v. Wagner, Wyo., 284 P.2d 409 (1955), and United States v. Lustman, 2 Cir., 258 F.2d 475, 478, cert. den. 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). S......