Rude v. People

• Decision Date: 04 January 1909
• Citation: 99 P. 317,44 Colo. 384
• Parties: RUDE v. PEOPLE.
• Court: Colorado Supreme Court

99 P. 317

44 Colo. 384

RUDE v. PEOPLE.

Supreme Court of Colorado

January 4, 1909

Error to County Court, City and County of Denver; Ben B. Lindsey Judge.

I. Rude, having been convicted of misdemeanor, brings error. Reversed.

George C. Manly, for plaintiff in error.

N. C Miller, William H. Dickson, Atty. Gen., and Samuel Huston Thompson, Jr., Asst. Atty. Gen. (W. F. Hynes, of counsel) for the People.

CAMPBELL J.

Defendant was proceeded against by information before a justice of the peace for a misdemeanor, and was fined. He appealed from the judgment, and lodged his transcript in the county court March 31, 1906. On the same day he was arraigned, pleading not guilty, and by agreement this trial was set for April 10th following, and he was admitted to bail. On the day so set for trial, on motion of the district attorney, the cause was continued for trial to May 10th; at which time on defendant's application it was continued for trial to June 5th. On June 5th and several times thereafter, each time on motion of the district attorney, the cause was successively continued for trial to September 6th September 11th, October 4th, October 9th, and November 16th of the same year. On November 13th, three days before the day of trial as last fixed by order of the court, defendant made and served on the district attorney a copy of a motion and application for discharge for want of prosecution, based on section 1616, Gen. St. 1883 (1 Mills' Ann. St. § 2113). On the following day, November 14th, two days before the day of trial, the district attorney and defendant with his counsel appeared in court and the trial order was vacated and by agreement of counsel cause was set for trial as of that day, namely, November 14th. Defendant's motion for discharge was then first submitted and overruled by the court, to which defendant execpted and the trial on its merits was then begun, resulting in a conviction of defendant and the imposition of a fine, to review which this writ of error is prosecuted. Defendant raises some important questions going to the merits and the sufficiency of the proofs; but we do not find it necessary to pass upon them, since it is entirely clear that his motion for discharge should have been granted. In the county court of the city and county of Denver, to which judgment this writ was prosecuted, there are six regular terms of court commencing on the first Monday in the months of January, March, May, July, September, and November. Gen. St. 1883, § 488 (1 Mills' Ann. St. § 1058). The statute cited, on which defendant's motion is grounded and which was in force at the time this action was tried, is part of our habeas corpus act. It provides that any person who is committed for a criminal matter and not admitted to bail, and who is not tried on or before the second term of the court having jurisdiction of the offense, shall be set at liberty by the court, unless the delay happens on his application. If at the second term the court is satisfied that due exertions have been made to procure that evidence by the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, the court may continue such case until the third term of court. If the prisoner has been admitted to bail for a crime other than a capital offense, the court may continue the trial to a third term if it appears by oath that witnesses for the people are absent, mentioning such witnesses by name, and the court shown wherein their testimony is material. This statute has been interpreted and enforced several times by this court and our Court of Appeals. In re Garvey, 7 Colo. 502, 4 P. 758; Cummins v. People, 4 Colo.App. 71, 34 P. 734; Van Buren v. People, 7 Colo.App. 136,...