Parker v. State

• Decision Date: 25 April 1912
• Citation: 122 P. 1116,7 Okla.Crim. 238,1912 OK CR 156
• Parties: PARKER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

122 P. 1116

7 Okla.Crim. 238, 1912 OK CR 156

PARKER v. STATE.

Court of Criminal Appeals of Oklahoma

April 25, 1912

Syllabus by the Court.

Where a defendant seeks to secure the dismissal of a prosecution against him, upon the ground that he was not brought to trial at the next term of the court in which the prosecution was triable after it was filed therein, as is provided by sections 7047 and 7048, Comp. Laws 1909, the burden is on the defendant to prove that the trial has not been postponed on his application. When the defendant has made this proof, the burden is then on the state to prove that good cause existed for such postponement.

Before a prosecution will be dismissed against a defendant because it is not brought to trial within the time prescribed by sections 7047, 7048, Comp. Laws 1909, the defendant must prove that he was ready for and demanded a trial, and objected to a postponement or continuance of the case. If he does not do this, he will be held in law to have waived his right to demand the dismissal of the case under the provisions of the sections above quoted.

Penal laws are not enacted for the encouragement of crime and the protection of criminals, but they are enacted for the sole and express purpose of punishing and suppressing crime and thereby protecting society; and it is the paramount duty of courts to so construe them as to promote this purpose.

Appeal from Superior Court, Oklahoma County; E. D. Oldfield, Judge.

H. C Parker was convicted of burglary, and appeals. Affirmed.

Winn & Brill and Pruiett & Sniggs, all of Oklahoma City, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

The first ground relied upon to secure a reversal of the judgment in this cause is that the court erred in overruling a motion made by appellant to dismiss this prosecution upon the ground that he was not brought to trial at the next term of the court in which said cause was triable after the information was filed against him, and that said cause was not continued on the application of appellant, and that no good cause was shown for such postponement of his case. This motion was based upon the following sections of our statute:

"Sec 7047. When not brought to trial.--If a defendant prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.

"Sec. 7048. Court may order continuance. --If the defendant is not prosecuted or tried, as provided in the last two sections, and sufficient reason therefor is shown, the court may order the action to be continued from term to term, and in the meantime may 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 action is continued."

In support of this ground, counsel in their brief say: "In People v. Morino 24 P. 892, under a similar statute, the court says: 'A party charged with a crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important or to prolong his imprisonment without such trial beyond the time provided by law.' It was enough for the defendant to show that the time fixed by statute, after information filed, has expired, and that the case had not been postponed on his application. We cite the following cases holding the same: United States v. Fox, 3 Mont. 512; In re McMicken , 18 P. 473; Walker v. State , 15 S.E. 553; In re Garvey , 4 Pac. 758; Ochs v. People 16 N.E. 662; In re Begerow 65 P. 828 [56 L. R. A. 513, 85 Am. St. Rep. 178]. In the latter case the petitioner was held under two informations, in the superior court, upon two separate charges for murder. More than 60 days passed without a trial. The delay not being caused by the defendant or with his consent, and there being no reason shown why the cases had not been brought to trial, the prisoner was discharged. The court says: 'The statute is imperative. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed. Here no cause for delay was shown. It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without trial, it was for the prosecution to show it. The court could not presume it. There is no presumption in such case, at least in the trial court, that the court has acted regularly, or that good cause in fact exists.' See, also, State v. Keefe 98 P. 122 [22 L. R. A. (N. S.) 896, 17...