People v. Foster

• Decision Date: 03 January 1933
• Docket Number: Motion No. 324.
• Citation: 261 Mich. 247,246 N.W. 60
• Parties: PEOPLE v. FOSTER et al.
• Court: Michigan Supreme Court

261 Mich. 247

246 N.W. 60

PEOPLE

v.FOSTER et al.

Motion No. 324.

Supreme Court of Michigan.

Jan. 3, 1933.

Appeal from Circuit Court, Berrien County; Charles E. White, Judge.

William Z. Foster and others were charged with criminal syndicalism, and they appeal from an order denying their motion to dismiss the prosecution for failure to accord them a speedy trial.

Affirmed.

Argued before the Entire Bench except POTTER, J.Maurice Sugar, of Detroit, and Humphrey S. Gray, of Benton Harbor, for appellants.

Paul W. Voorhies, Atty. Gen., Hugh E. Wilson, and William A. Richards, Assts. Atty. Gen., for the People.

FEAD, J.

Defendants review denial of their motion to dismiss the prosecution for failure to accord them a speedy trial, in violation of the Constitution, art. 2, § 19: ‘In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury. * * *’

Defendants were charged with criminal syndicalism in one information, but demanded separate trials. The last arraignment was on December 5, 1922. William Z. Foster was tried and the jury disagreed in April, 1923. Charles E. Ruthenberg, a codefendant, was tried in May, 1923, and found guilty. The conviction was affirmed by this court in December, 1924. People v. Ruthenberg, 229 Mich. 315, 201 N. W. 358. Ruthenberg had writ of error from the Supreme Court of the United States, died in March 1927, before decision, and the writ was dismissed. No other trials have been had. Defendants have been at liberty on bail. The instant motion was filed March 21, 1931.

Defendants made showing that they have always been ready for trial, have never consented to continuance or delay and no order of continuance appears of record; and further, that from October, 1929, to January, 1931, they many times made demand on the prosecuting attorney and Attorney General for prompt trial or dismissal. The people made no countershowing in denial nor of excuse or reason for the delay.

Defendants also averred that after June, 1929, they had several conferences with the trial judge, many times requested prompt trial or discharge, and he referred them to the Attorney General as having charge of the case. On the hearing of the motion to dismiss, the trial judge stated that the conferences dealt principally with bail money and settlement by pleas of guilty and that no definite and unequivocal demand for trial was made until January, 1931. On denying the motion, the court set the case for trial. No formal demand for trial was filed or made in open court.

Because there was no showing of good cause for the delay, no argument is necessary to support the conclusion that the constitutional time has been exceeded. Upon proper demand of defendants, speedy trial would have been ordered. Hicks v. Recorder's Court, 236 Mich. 689, 211 N. W. 35. The demands, whatever their character, made on the circuit judge at chambers and on the prosecuting officers, were not sufficient. Trial is in charge of the court. The rights of defendants are for determination and protection of the court. The demand must be made to the court. Consequently the proper method is by motion filed in the cause or made in open court. This leaves as the determinative question whether demand for trial by defendants was a prerequisite of their motion to dismiss. It is a new question in this state.

There are too many decisions of other courts involving similar or equivalent constitutional provisions to permit their detailed discussion or citation. Only a few illustrative cases will be noted.

All the cases in state courts which we have found involve the construction of statutes providing time limit upon delay of trial. The statutes are held to be supplementary to the constitutional provision for speedy trial and enacted to give it concrete form and force. The time prescribed in the statute is considered a legislative declaration of the limit of delay permitted by the Constitution except upon conditions of further delay named in the statute. Ford v. Superior Court, 17 Cal. App. 1, 118 P. 96;Francis v. State, 26 Okl. Cr. 82, 221 P. 785; Ex parte Chalfant, 81 W. Va. 93, 93 S. E. 1032. The time limit generally prescribed is from sixty days to three terms of court after indictment.

Most of the cases rest wholly on the language of the statutes. On the one hand, it is held that the laws are mandatory, are virtual statutes of limitations, and impose on the officers of the state the affirmative duly to bring the accused to trial within the prescribed time. In re Trull, 133 Kan. 165, 298 P. 775;State v. Wear, 145 Mo. 162, 46 S. W. 1099;In re Begerow, 133 Cal. 349, 65 P. 828, 56 L. R. A. 513, 85 Am. St. Rep. 178; State v. Rosenberg, 71 Or. 389, 142 P. 624; Ex parte Chalfant, 81 W. Va. 93, 93 S. E. 1032. On the other, the ruling is that statutes offer the accused a right which he must demand before he can claim it has been violated. People ex rel. Ianik v. Daly (Sup.) 142 N. Y. S. 297;People v. Klinger, 319 Ill. 275, 149 N. W. 799,42 A. L. R. 581;State v. Slorah, 118 Me. 203, 106 A. 768, 4 A. L. R. 1256;Francis v. State, 26 Okl. Cr. 82, 221 P. 785;State v. Dinger, 51 N. D. 98, 199 N. W. 196;State v. Lamphere, 20 S. D. 98, 104 N. W. 1038.

The great weight of authority is that the accused must demand trial before he can claim discharge. 85 Am. St. Rep. 188, note; 56 L. R. A. 538, note; 44 L. R. A. (N. S.) 871, note; 16 C. J. 443; 8 R. C. L. 74.

In the reasoning the constitutional provision has been called ‘self-executing’ and it is said claim need not be made under the statute. In re Alpine, 203 Cal. 731, 265 P. 947, 58 A. L. R. 1500. It has also been said that the Constitution establishes a personal right which may be waived and that waiver occurs as well from the inaction of failing to demand a speedy trial as from the action of consent to delay. Butts v. Commonwealth, 145 Va. 800, 133 S. E. 764.

The only cases not involving supplementary statutes seem to be those dealing with the federal Constitution. They hold delay no violation except after demand for trial. Phillips v. United States (C. C. A.) 201 F. 259;Frankel v. Woodrough (C. C. A.) 7 F.(2d) 796.Worthington v. United States (C. C. A.) 1 F.(2d) 154.

There are many constitutional rights which may be waived as well by failure to demand them as by affirmative action. In the absence of statute, the time limit of a speedy trial may depend upon a multitude of circumstances. One of the circumstances is that an accused is on bail or in jail. Where defendants are on bail and do not appear in court demanding trial, they have little reason to complain of delay. Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991,35 L. R. A. 176, 54 Am. St. Rep. 447. They are not under the oppression of the government which the provision was designed to prevent. In the absence of statute declaring a different policy, reason supports the conclusion that an accused on bail waives his constitutional right to a speedy trial by not demanding it. It is in accord with general experience that, although no formal consent be given, the delay is agreeable to both the state and the accused.

Defendants cite C. L. 1929, §§ 17294, 17295, introduced by the Code of Criminal Procedure of 1927, over three years before the motion to dismiss. Section 17294 reads: ‘The people of this state and persons charged with crime are entitled to and shall have a speedy trial and determination of all prosecutions and it is hereby made the duty of all public officers having duties to perform in any criminal case, to bring such case to a final determination without delay except as may be necessary to secure to the accused a fair...