Ex parte Schechtel

Docket Number14426.
Decision Date31 August 1938
Citation82 P.2d 762,103 Colo. 77
PartiesEx parte SCHECHTEL.
CourtColorado Supreme Court

In Department.

Proceeding in the matter of the application of Harry Schechtel for a writ of habeas corpus.

Writ denied.

William A. Bryans, of Denver, for petitioner.

Byron G. Rogers, Atty. Gen., Oliver Dean, Asst. Atty. Gen., and John A. Carroll and O. Otto Moore, both of Denver, for respondent William E. Guthner.

KNOUS Justice.

This is an original application for a writ of habeas corpus by Harry Schechtel, who alleges that he is unlawfully restrained of his liberty under and by virtue of a criminal capias issued out of the seventh division of the district court of the second judicial district of the state of Colorado.

On the 5th day of October, 1935, in the district court of the United States for the District of Colorado the petitioner was found guilty of an offense against the laws of the United States, and on said date was sentenced to a term of four years in the federal reformatory at El Reno Oklahoma, where, and in the United States Detention Farm at La Tuna, Texas, to which he was subsequently transferred, he has been continuously confined by reason of said conviction until he was recently transported by a United States marshal to the City and County of Denver, Colorado, under the circumstances hereinafter mentioned. The federal sentence with credit for good conduct, will not expire until November 2, 1938.

On April 11, 1936, when Schechtel was in federal prison, an indictment was returned against him by a grand jury within and for the second judicial district in the State of Colorado, wherein he was charged with the offense of conspiracy to commit a felony, to wit: Uttering a forgery, in violation of the laws of the state of Colorado, the alleged offense being distinct from that involved in the federal conviction. A capias upon the state indictment was issued on the 13th day of April, 1936, but was never served upon the petitioner until he was returned to Denver by a United States marshal in August, 1938. Soon after the indictment was returned the then district attorney of the second judicial district of Colorado, requested the warden of the federal reformatory, to which petitioner had been sentenced, to detain him upon the completion of the federal sentence for delivery to a Coloardo officer, for return to Colorado for trial on the state indictment. No further formal action upon the part of anyone with reference to the state indictment was taken until January 12, 1938, when petitioner by counsel filed in the district court of the second judicial district a motion to dismiss the indictment upon the ground that the petitioner had been denied the right to a speedy trial of the charges contained in the indictment, guaranteed him by our Constitution and statutes, alleging that five terms of said court, including the term at which said indictment was returned, had passed without a trial being had and that such delay was not due to or upon the application of the petitioner, nor were any continuances applied for or granted by or to the people to procure evidence or otherwise, and that petitioner has always been desirous of and ready for trial. It would appear that this motion was prompted by the circumstances that at about this time the petitioner had served a sufficient period in the federal prison to become eligible for parole, the granting of which, however, was precluded under the federal regulations by the pending state indictment. The petitioner bitterly complains that its pendency has deprived him of parole, but with this consideration we cannot be concerned since we know of no principle by which the officers in Colorado, charged with the prosecution of Colorado indictments, should be guided in their conduct by the federal prison parole status of the accused thereunder. The state resisted the motion upon the ground that it could not put petitioner on trial until the completion of the federal sentence, and asserted that it was ready to proceed with the trial at the September, 1938, term of the district court. By a well considered written opinion Judge Walsh of the district court overruled the motion to dismiss, but in the light of the expressed intention of the state to try the case, recommenced that the district attorney make application to the proper federal authorities for the return of the petitioner to Colorado for the purpose of arraignment under the indictment. After securing the consent of the Attorney General of the United States, the state district attorney filed an application for a writ of habeas corpus ad prosequendum in the United States district court for the district of Colorado, as a result of which an order was issued by that court directing the United States marshal for the district of Colorado to transport the petitioner from the federal detention farm at La Tuna, Texas, to Denver Colorado, for arraignment Before the state district court, following which it was directed that the petitioner be returned by the United States marshal to the federal detention farm. Pursuant to this order the petitioner was returned to Colorado and lodged in the county jail of the City and County of Denver, whereupon the habeas corpus petition Before us was filed.

This procedure is in accord with the practice approved in Re Miller, 66 Colo. 261, 180 P. 749, where, in original proceedings in habeas corpus, it was asserted that the petitioner had been denied a speedy trial, which assertion was considered by this court after a motion to dismiss upon the same grounds as presented in this case had been denied by the district court. The petition Before us is grounded upon substantially the same contentions as were advanced in the motion to dismiss the indictment filed in the district court. In addition to the matters which we have mentioned, the petitioner alleges that his wife and brother, upon several occasions, in informal discussions with the former and present district attorney of the second judicial district requested that the state case against the petitioner be either dismissed or tried. To a limited extent these allegations are controverted by the respondent's answer, but we do not deem this issue pertinent, since we proceed upon the assumption, although we do not, however, so decide, that the petitioner's right to a trial was at no time dependent upon his demand therefor. The answer of the respondent details the factual situation substantially as outlined in our statement of facts and seeks to justify the delay in the trial of the state charges on the basis previously indicated. Section 16, article 2, or our Constitution insures every person charged with crime 'a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' Supplementing the constitutional provision and a legislative pronouncement of what, ordinarily at least, is to be...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT