Com. v. Thomas
| Decision Date | 29 December 1967 |
| Citation | 233 N.E.2d 25,353 Mass. 429 |
| Parties | COMMONWEALTH v. George A. THOMAS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Roger F. Sullivan, Asst. Atty., for the Commonwealth.
James Seligman, Fall River, for defendant.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.
This case is here on an interlocutory report from the Superior Court. The defendant was arrested and arraigned in the Second District Court of Bristol County on March 9, 1967, on a complaint charging him with breaking and entering in the daytime under G.L. (Ter.Ed.) c. 266, § 18. The District Court had jurisdiction of the case under G.L. c. 218, § 26. The defendant pleaded not guilty and the case was continued to April 7, 1967. On that date, the defendant appeared in the District Court with his attorney and witnesses, prepared for trial. The assistant district attorney requested a thirty day continuance, for which he gave no reason. The defendant objected, and the judge refused to grant the continuance, Subsequently, the district attorney presented the case to the grand jury, who returned the present indictment. 'Upon his arraignment in the Superior Court, the defendant pleaded not guilty and was granted leave to present a motion to dismiss (the indictment).'
The judge ruled 'that the so-called nol pros was a nullity and of no legal effect in that no reasons for it were set forth, as required by G.L. (Ter.Ed.) c. 277, § 70A'; that 'the defendant, having been present in the District Court with his attorney and witnesses, was entitled to a trial as a result of which he might have been found innocent of the charge had the Court assumed jurisdiction, or a finding of no probable cause to send the case to the Grand Jury'; and that 'in the circumstances here disclosed, the defendant was unduly harassed, denied his (c)onstitutional right to a speedy trial, to which he was entitled, and that the indictment should be dismissed.' The judge then reported 'the questions here involved to the Supreme Judicial Court as interlocutory matters,' under G.L. c. 278, § 30A.
We consider the question whether the defendant 'in the circumstances here disclosed' was 'denied his (c)onstitutional right to a speedy trial * * * and (therefore) * * * the indictment should be dismissed.'
The right of a criminal defendant to a speedy trial is guaranteed by art. 11 of the Declaration of Rights. Commonwealth v. Hanley, 337 Mass. 384, 387, 149 N.E.2d 608. It is likewise guaranteed by the Sixth Amendment to the Constitution of the United States, said in the case of Klopfer v. State of North Carolina, 386 U.S. 213, 222, 87 S.Ct. 988, 18 L.Ed.2d 1, to be applicable to the States under the Fourteenth Amendment. Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950. However, '(t)he delay must not be purposeful or oppressive.' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393. And '(w)hen a person charged with (a) crime is willing to proceed * * * to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of witnesses.' 1 Cooley, Constitutional Limitations (8th ed.) p. 646.
In the instant case, the assistant district attorney did not deign to state a reason in justification for delaying the trial. The reason for the 'nol pross,' of course, was obvious. He sought to compel the District Court judge to continue the case for thirty days, in the face of G.L. c. 276, § 35, prohibiting the granting of delays in excess of 'ten days at any one time against the objection of the defendant.'
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