Ex parte Snyder v. Guthner, 15232.

• Decision Date: 21 September 1942
• Docket Number: 15232.
• Citation: 110 Colo. 35,129 P.2d 672
• Parties: Ex parte SNYDER. v. GUTHNER, Ex Officio Sheriff, et al. SNYDER
• Court: Colorado Supreme Court

129 P.2d 672

110 Colo. 35

Ex parte SNYDER.

SNYDER v. GUTHNER, Ex Officio Sheriff, et al.

No. 15232.

Supreme Court of Colorado, En Banc.

September 21, 1942

Original proceedings in the matter of the application of William Snyder for a writ of habeas corpus, William Snyder petitioner, against William E. Guthner, ex officio Sheriff of the City and County of Denver, State of Colorado, and another, respondents.

Order to show cause and for a stay vacated and writ denied.

Eugene H. Tepley, of Denver, for petitioner.

James T. Burke, Dist. Atty., and Robert T. Kingsley, Deputy Dist Atty., both of Denver, for respondents.

KNOUS Justice.

This is an original habeas corpus proceeding. The petitioner defendant in case No. 34448, People v. Snyder, pending in the district court of the City and County of Denver, filed his motion to dismiss the information wherein he was charged with burglary, larceny and receiving stolen goods of a value of more than $290, upon the ground that he had not been accorded a speedy trial as guaranteed by section 16, article II of the Constitution, and section 485, chapter 48, '35 C.S.A. The motion was denied and this original proceeding followed. The information above mentioned was filed May 29, 1939, in the April 1939 term, concededly Before any statute of limitations ran against the offense charged. June 5, 1939, defendant entered a plea of not guilty and was released on bond on the 26th of the same month. Subsequently, by agreement, the case was set for trial on October 19, 1939, in the first term following the one in which the information was filed. Defendant failed to appear for trial on the date fixed, and on October 20, 1939, his bond was forfeited. He continued a fugitive from justice until September 1, 1942 when he either surrendered or was apprehended. Counsel, who represents petitioner here, was assigned to defend him and the trial was set for September 16, previous to which date the motion to dismiss hereinabove mentioned was made and denied. Since petitioner consented to the continuances in the district court and has been a fugitive from justice until recently, no contention is made with respect to any delay in trial since the information was filed, but it is asserted that Before such information was filed more than three full terms (April and September, 1938, and January, 1939) had elapsed after defendant was taken into custody on a warrant for the same alleged offense issued out of a justice of the peace court in Denver. The circumstances attendant thereto are: That July 7, 1937, a criminal complaint charging the same felony was filed in the justice of peace court as the basis for a preliminary examination therein with respect to the probable guilt of innocence of defendant and other persons therein named under section 428, chapter 48, '35 C.S.A. Warrant was issued, defendant arrested, and he pleaded not guilty March 31, 1938, and thereafter was admitted to bail for appearance for preliminary examination. In such a proceeding a justice of the peace is without jurisdiction to adjudge the ultimate guilt or innocence of the accused. Before the date fixed for the preliminary examination in the justice of the peace court, and on May 19, 1938, the proceedings were dismissed 'upon motion of the district attorney at the request of complaining witness' and defendant released from custody.

Counsel for petitioner contends that the justice of the peace proceeding was not effectively dismissed because of the failure of the district attorney to file a written statement of the reasons for such disposition said to be required by section 463, chapter 48, '35 C.S.A., and that since petitioner was...