King v. State

• Citation: 201 P. 99,23 Ariz. 49
• Decision Date: 24 October 1921
• Docket Number: Criminal 1517
• Parties: JOHN KING, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

201 P. 99

23 Ariz. 49

JOHN KING, Appellant, v. STATE, Respondent

Criminal No. 1517

Supreme Court of Arizona

October 24, 1921

APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge. Affirmed.

Messrs Hays & Hays, for Appellant.

Mr. W J. Galbraith, Attorney General, Mr. G. R. Hill, Assistant Attorney General, and Mr. R. N. French, County Attorney, for the State.

OPINION

FLANIGAN, J.

Under information filed July 10, 1920, appellant was convicted of the crime of murder in the second degree, and was thereupon adjudged to suffer an indeterminate imprisonment of not less than ten years, the maximum sentence to be his natural life. From this judgment, and an order denying his motion for new trial, he appeals.

The defendant was not brought to trial until October 4, 1920. Eighty-five days had therefore elapsed between that time and the filing of the information. Appellant by his counsel announced himself ready for trial, a jury was impaneled, and on October 5, 1920, duly sworn to try the issue. After the jury had been sworn, counsel for defendant moved "the court to dismiss the cause under subdivision 2, paragraph 1274, of the Penal Code," which motion the court denied upon the ground that, the jury having been impaneled and sworn, and the defendant placed in jeopardy, his right to such dismissal was waived.

The relevant part of section 1274 is as follows:

"The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: . . . (2) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment or the filing of the information."

The record shows that the trial had not been postponed upon defendant's application, and that no cause was shown by the state for the delay. The refusal of the court to order the prosecution dismissed is the basis of the first assignment of error. We think the ruling of the court was correct. Unquestionably, the section quoted is a construction of our constitutional guaranty that accused persons shall in criminal prosecutions have the right to a speedy trial (section 24, art. 2, Constitution), being in the nature of a legislative definition of the term. Yule v. State, 16 Ariz. 134, 141 P. 570; Matter of Application of Von Feldstein, 17 Ariz. 245, 150 P. 235.

Appellant contends that the right thus constitutionally secured could not be waived by him. With this we cannot agree. The constitutional provision, as is shown by its origin and history, was designed to secure a benefit personal to the defendant, and -- "it is a recognized principle that every one may waive a right intended for his own benefit, if it can be relinquished without detriment to the community at large." Reid v. Field, 83 Va. 26, 1 S.E. 395.

That the right was here waived is plain.

People v. Hawkins, 127 Cal. 372, 59 P. 697, is directly in point, and construes the statute of California from which our provisions are taken. We quote from the opinion:

"The legal jeopardy of the defendant has attached when a jury has been 'charged with his deliverance,' and the jury stands thus charged when its members have been impaneled and sworn. Cooley, Const. Lim. (6th ed.), p. 399. When, therefore, the defendant here moved for dismissal, he had been 'brought to trial,' and was upon trial, without previous objection that the limit of 60 days had expired. If he could then raise the objection for the first time, he could raise it as well on the announcement of the verdict, or at any other stage of the trial. We are satisfied that the statute never was designed for such uses, and must hold that defendant waived its benefit (if he was entitled thereto) by failure to claim it in proper season."

We hold that the assignment of error is without merit.

The next assignment is that the deputy county attorney in his argument to the jury used the following language:

"The defendant never explained why those blood spots were upon his clothes and his pistol."

There was testimony by a witness for the state that there were blood spots upon the defendant's clothes and pistol after the killing of Scott. The defendant did not testify although he introduced the testimony of others. The record of the action certified to this court in accordance with the provisions of section 1130, Penal Code, includes the motion for new trial, and an affidavit -- apparently a part of this motion -- made by the defendant, in which he avers that the deputy county attorney used the language quoted in his opening argument to the jury, and also contains the counter-affidavit of that officer that he had referred to the "defense" and not to the "defendant," admitting he was otherwise correctly quoted. It appears also that an instruction was requested to the effect that the jury should not in any manner consider the failure of the defendant to testify, and that...