In re McMicken
| Decision Date | 09 June 1888 |
| Citation | 18 P. 473,39 Kan. 406 |
| Parties | In the matter of the petition of JAMES MCMICKEN for a Writ of Habeas Corpus |
| Court | Kansas Supreme Court |
THE opinion states the case.
F Danford, and J. R. Burton, for petitioner.
J. G Mohler, for The State.
OPINION
The petitioner was informed against in Trego county, on May 3, 1887, for the crime of murder in the first degree in killing E. T. Robbins, in the county of Wallace, an unorganized municipal township, attached to Trego county for judicial purposes. At the May term of the court for 1887, the trial of the case was continued, upon application of the petitioner, until the next term of the court. At the September term of the court for 1887 the cause was continued to the next term, "because, within the knowledge of the court, a question was pending and undetermined as to its jurisdiction to try the case." At the January term of the court for 1888, the case was again continued for trial until the next term, to await a decision of the question of the jurisdiction of the court to try the case. At the continuances in September, 1887, and January, 1888, the petitioner was in confinement in the jail of Saline county, but was represented by his attorney, F. Danford, Esq., who neither objected nor consented when the orders of continuances were made. On March 31, 1888, at an adjournment of the January term of 1888, a motion was filed by the attorneys of the petitioner, Messrs. Burton & Danford, for his discharge, upon the ground that ever since the filing of the information against him he had been confined in jail, and more than three terms of court had been held in Trego county without his being brought to trial, and no delay had happened upon his application, or been occasioned by the want of time to try the case. This motion was heard and overruled by the court.
The petitioner claims now that he is entitled to be discharged under the provisions of § 220 of the criminal code, which reads:
"If any person, under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after such indictment found or information filed, he shall be entitled to be discharged, so far as relates to the of offense for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term."
Section 10, of the bill of rights in the constitution of the state, declares that in all prosecutions the accused shall be allowed a speedy public trial. The statute is intended practically to carry out that right by prescribing a definite and uniform rule for the government of courts in their practice. There can be no question that the petitioner was entitled to his discharge upon his motion, as the record clearly shows that the delay had not happened upon his application, or been occasioned by the want of time to try the case. It further clearly appears from the record that the discharge was not refused to obtain material evidence for a trial at the succeeding term. (Crim. Code, § 222) As the petitioner was not brought to trial within the time limited by the statute, without any fault or hindrance on his part, and without any reasonable or legal excuse therefor, the district court erred in not setting him at liberty.
The only serious question in the case is whether habeas corpus is the proper remedy. In In re Edwards 35 Kan. 99, this court held that a...
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