Duncan v. State
| Decision Date | 23 April 1963 |
| Docket Number | 7 Div. 716 |
| Citation | 154 So.2d 302,42 Ala.App. 111 |
| Parties | Dan DUNCAN v. STATE. |
| Court | Alabama Court of Appeals |
Dan Duncan, pro se.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
This is an appeal from a judgment based on the denial of post conviction review.
Duncan sought to put the good offices of the circuit court in motion so as to set aside an earlier conviction whereunder he was found guilty of robbery and sentenced to ten years in the penitentiary.
With the most imaginative reading of the petition Duncan filed in the circuit court, the only complaint we can glean therefrom is that he now thinks that in some way or another he was not brought to trial on the indictment as soon as he thought he should have been.
In the premises of the judgment of the circuit court, we find:
The right to a speedy trial, of course, is one of the things Americans and Englishmen have literally fought for and thus have made into a constitutional right. The opinion of our Supreme Court by the late Mr. Justice Foster, in Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, is a well known landmark in this field. But merely echoing that such a right exists is only asserting an undisputed major premise. The facts in an individual case make its law.
At common law, it was generally thought that the passage of two terms of criminal court since arrest and commitment, on proper petition for habeas corpus, would liberate an accused who had not by then been indicted and tried.
Habeas Corpus Act, 1679, 31 Charles II, c. 2 (Pickering's Statutes at Large, VII, 436):
Sec. VII. '* * * and if any person or persons committed as aforesaid, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer and general gaol-delivery, to be brought to his trial, shall not be indicted and tried the second term, * * * after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.' (Italics added.)
Of this section Sir William Holdsworth says in History of English Law, IX, 118:
'* * * Prisoners indicted for treason or felony must be tried at the next sessions or bailed; but if it appear that the king's witnesses cannot be ready at that time, they may be committed till the following term; if not tried, then they must be discharged. * * *'
Virginia and Georgia appear to have enacted statutes along similar lines. Archbold, Criminal Practice and Pleading (8th Ed. with Pomeroy's notes), 335.
On the other hand, a cursory reading of the statutes relating to criminal trials shows that our Legislature has been mainly concerned with an accused wanting to unnecessarily delay his trial. Cf. Code 1940, T. 30, § 67; T. 15, §§ 316 and 317; also Archbold, supra, 334-6.
Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, shows that there Flummer, on finally being served with certain indictments of the ripe age of twelve years, promptly petitioned the circuit court to dismiss these by now venerable true bills.
Here Duncan, for aught that we know, was glad to be ignored by the prosecution. Certainly all that is shown either by the English statute, supra, if it is the received Common Law in this State, or by § 6, Constitution 1901, requires some petition by the prisoner for prompt prosecution, particularly after commitment on the indictment.
Foster, J., in Flummer's case, supra, makes a distinction where the indictee is already serving a prison term. Here that...
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