McCandless v. District Court of Polk County

• Citation: 61 N.W.2d 674,245 Iowa 599
• Decision Date: 15 December 1953
• Docket Number: No. 48352,48352
• Parties: . Supreme Court of Iowa
• Court: United States State Supreme Court of Iowa

Page 674

61 N.W.2d 674

245 Iowa 599

McCANDLESS v. DISTRICT COURT OF POLK COUNTY.

No. 48352.

Supreme Court of Iowa.

Dec. 15, 1953.

Rehearing Denied March 12, 1954.

Prince & Guthrie, Webster City, Dale L. Porter, Des Moines and Lehmann, Hurlburt, Blanchard & Cless, Des Moines, for petitioner.

Clyde E. Herring, County Atty. of Polk County, Des Moines, for respondent.

LARSON, Justice.

On the 3rd day of August, 1952, petitioner James Bawden McCandless was arrested in Polk County, Iowa, and charged with operating a motor vehicle while intoxicated. He was bound over to the grand jury and released on a bond which was furnished by a relative with whom he resided near Webster City, Iowa. Petitioner's bond provided for his appearance at the next term of the District Court in and for Polk County 'to be begun and held at Des Moines, * * * on the 2d day of September, A.D. 1952,' there and then to answer the charge against him. The grand jury returned an indictment against petitioner McCandless on the 10th day of October, 1952, charging him with the crime of operating a motor vehicle while intoxicated, second offense. Warrant was issued for his arrest and said information communicated by radio to the office of the Sheriff of Hamilton County, though there is no showing it was ever received by the sheriff. Nevertheless there was no reply from that officer, no further action shown by the Polk County sheriff's office to obtain custody of the accused, and no attempt by the accused to depart from his usual abode. On April 23, 1953, defendant was called in open court, failed to answer, and his bond declared forfeited. Petitioner contends he had no knowledge of his indictment until a notice was served April 27, 1953, upon his bondsman. Hearing was set for the 11th day of May, 1953, to show cause why judgment should not be entered on the bond. Petitioner and his counsel appeared in court on said date, the bond forfeiture was set aside, and the petitioner formally arraigned under the indictment. Thereupon petitioner filed a motion to dismiss the indictment, stating as grounds the provisions of Sections 795.2 and 795.3, Code of Iowa 1950, I.C.A. It appeared that the accused had lived in Des Moines and worked there within a few blocks of the courthouse most of the time from the latter part of September, 1952, until the hearing, but had never inquired of the court or of court officials as to the status of his matter. He did visit at his home near Webster City frequently and said he kept in touch with his attorney there who was representing him in this and other matters. His attorney had written several letters to the Polk County Attorney regarding the charge, most of which pertained to the attorney's view that there was insufficient evidence for consideration or presentment to the grand jury. The last of these letters was dated September 2, 1952, and stated:

'With reference to the above case, we have had no further word from your office with reference to your intended disposition of the matter. In the event that the defendant is to be indicted, we will produce him for arraignment at your request on two days notice if that is agreeable with you. Inasmuch as the plea will be not guilty, we also request that in such event, the case be set for trial to a day certain in order that we may be on hand for trial.'

The Polk County Attorney replied on September 4, 1952, as follows:

'The OMVI charge against the above named defendant (James McCandless) has not yet been heard by the Polk County Grand Jury. Please be assured that I will keep you advised of whatever action the Grand Jury takes on this case.'

Petitioner maintains that, as he had heard nothing through his attorney or otherwise, he had a right to assume that the matter had been dropped, though he had not inquired at the Polk County Courthouse nor requested that his bond be exonerated.

The terms of the District Court in Polk County commenced on September 2, 1952, November 3, 1952, January 5, 1953, March 2, 1953, and May 4, 1953, and each term duly concluded without calling the accused for trial until April 23, 1953. The petit jury for the March term, 1953, was discharged on or about April 10, 1953. Thus there appears no dispute as to the passage of three terms of court between the time of petitioner's indictment and April 23, 1953, when his case was first called for trial.

In overruling petitioner's motion to dismiss the indictment against him, the respondent judge stated that he had very serious doubts if the statutes involved begin to run until after arraignment. He also held that there was shown 'ample good excuse here' for not bringing petitioner to an earlier trial. Thereupon petitioner instituted this proceeding in certiorari to review the court's ruling.

I. The statutory period is applicable whether the accused is arrested and arraigned or not. We discussed this matter in Hottle v. District Court, 233 Iowa 904, 11 N.W.2d 30, and held that while the court did not have jurisdiction over the person of the accused until he was served under the indictment, the court could on its own motion dismiss the indictment in a proper showing under these sections. We discussed there the contention of the state that, because the accused had never been arrested upon warrant issued under the indictment, he could not move to dismiss the indictment for the reason that the court does not obtain jurisdiction until the arrest, under the decision in State v. Judkins, 200 Iowa 1234, 206 N.W. 119. We further distinguished between that situation and cases involving a 'speedy trial', and concluded while the rule in the Judkins case was correct, it did not apply to a motion to dismiss an indictment for failure to provide a speedy trial. We conclude, therefore, the motion to dismiss the indictment was proper under the considered statutes regardless of whether or not there had been an arrest under the indictment.

II. As in a number of like appeals, we are again called upon for an interpretation and application of the constitutional guaranty of a speedy trial, as defined by the provisions of Section 795.2 and Section 795.3, Code of Iowa 1950, I.C.A. Section 795.2 provides:

'If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next regular term of the court in which the indictment is triable after the same is found, the court must order it to be dismissed, unless good cause to the contrary be shown.'

Section 795.3 provides:

'If the defendant be not indicted or tried as above provided, and sufficient reason therefor is shown, the court may order the prosection continued from term to term, and discharge the defendant from custody on his own undertaking, or on the undertaking of bail for his appearance to answer the charge at the time to which the same is continued, but no continuance under this section shall be extended beyond the following three terms of the court.'

The nature of the above quoted sections is a statutory definition of the term 'speedy trial' as conceived by the particular legislature enacting it, with the purpose in mind of more effectively enforcing the constitutional guaranty. Pines v. District Court, 233 Iowa 1284, 10 N.W.2d 574.

These sections should be read together, and are interpreted to mean that if 'good cause' is shown the court may continue the case, but not beyond three terms of court, Davision v. Garfield, 219 Iowa 1258, 257 N.W. 432, 260 N.W. 667; Paul v. District Court, 231 Iowa 1027, 2 N.W.2d 751, unless accused waives in some manner his statutory and constitutional privilege of a speedy trial. Pines v. District Court, supra.

The rule in most jurisdictions now is clear. In order for an accused to enjoy the privilege of a 'speedy trial', he must make a demand to the court for an early trial. If he fails to do so he waives not only the privilege provided by the constitution but the requirement of the statutes as well, and it is therefore unnecessary for the state to show 'good cause' for the delay. Thus we conclude the privilege afforded the accused for an early trial is considered waived when no demand is made to the court, and there can be no dismissal of the charge solely on the ground that 'good cause' for the continuance was not shown by the state. It is only after the demand has been made to the court that the statutory provisions become effective and place the burden on the state to show 'good cause' for a continuance. To this extent we now alter our holding in Davison v. Garfield, supra.

III. Petitioner complains bitterly that he was injured when he relied upon the promise of the Polk County Attorney that his lawyer would be kept 'advised of whatever action the Grand Jury takes on this case.' This may or may not be true. The petitioner and his counsel chose to rely upon the promise in the county attorney's letter. They were not compelled or authorized in law to do so. This transaction, nevertheless, is little more than petitioner's misplaced confidence or a failure of the county attorney to carry through on a courtesy he personally assumed. It cannot be held binding on the court or the state nor relieve the defendant from his promise in the bond filed in court guaranteeing his appearance. To hold otherwise would not appeal to reason, for the law does not confer upon the county attorney the right to dismiss any indictment without the court's approval. In an effort to punish the county attorney for his neglect it is unthinkable to provide such indirect authority in him at the expense of public safety and welfare. Furthermore, we have been cited no authority, nor have we been able to locate any, holding that under such circumstances a county attorney may relieve one accused from the obligations of his bond. The trial court held this an insufficient excuse for defendant's failure to appear in court as required by his bond, and we agree. In so deciding we do not offer an...