State ex rel. Adams v. Larson

• Decision Date: 03 December 1903
• Docket Number: 6731
• Citation: 97 N.W. 537,12 N.D. 474
• Court: North Dakota Supreme Court

97 N.W. 537

12 N.D. 474

THE STATE OF NORTH DAKOTA EX REL. ADAMS v. C. E. LARSON, SHERIFF OF LAMOURE COUNTY

No. 6731

Supreme Court of North Dakota

December 3, 1903

Application by the state on the relation of William W. Adams for writ of habeas corpus to C. E. Larson, sheriff of LaMoure county.

Writ denied.

Writ denied.

T. A Curtis, for petitioner.

The petitioner, not having been tried at or before the second term of court after his commitment for want of bail, should be discharged. Cummins v. People, 34 P. 734; re Frederick Bergerow, 133 Cal. 513, 56 L. R. A. 513.

C. N Frich, Attorney General, E. M. Warren, State's Attorney and Nels Larsen, for the state.

Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon an undertaking for his appearance. Rev. Codes, 8443.

Issues of fact in criminal actions must be tried at a regular term of the court in the county in which the case is brought, or to which it has been removed. Rev. Codes, section 7755.

The phrase, "regular term," has reference to a term at which jurors have been summoned. State ex rel. Baker v. Boucher, 8 N.D. 277, 78 N.W. 988.

Unless good cause to the contrary is shown, prosecution must be dismissed when a person has been held to answer for a public offense if information is not filed, or indictment found, against him at the next regular term. Rev. Codes, section 8497.

An order refusing to discharge a prisoner because three terms of court have passed without his being tried as provided by section 221, Criminal Code of Kansas, is properly made when the defendant has made no effort to be tried. In re Edwards, 35 Kan. 99, 10 P. 539.

Defendant must appear and demand trial. Gallagher v. People, 88 Ill. 335; Stewart v. State, 13 Ark. 720; Watson v. People, 27 Ill.App. 493; Roebuck v. State, 57 Ga. 154.

The May term was the first term of court at which an indictment could have been found or information filed against the defendant. The May term should be excluded. Gillespie v. People, 176 Ill. 238; 52 N.E. 250; Ochs v. People, 124 Ill. 399, 16 N.E. 662.

The trial court at the September term having offered to summon a jury for the trial of the defendant's case, which offer was declined, brings the action within the exception found in section 8679, Rev. Codes, in the words "unless the delay shall happen on the application of the prisoner."

OPINION

COCHRANE, J.

Two terms of the district court of LaMoure county have been held since petitioner was bound over to answer on a charge of rape. These terms were held at the times fixed by law for the holding of court in this county, but at neither term was a jury ordered or summoned to attend. An information was filed against the petitioner by the state's attorney at the second term after his commitment. He was arraigned upon this information, and entered a plea of not guilty thereto. He made no demand for a trial at this term. He has been held in jail by the respondent, the sheriff of LaMoure county, since commitment, in default of $ 5,000 bail fixed by the examining magistrate, and which he was unable to give. After the adjournment of the second term of the district court following his commitment, he sued out a writ of habeas corpus from the district court, to which respondent made due return. The petition and return in all respects complied with the requirements of sections, 8650, 8656, Rev. Codes 1899. On October 16, 1903, a full hearing was had, both sides being represented by counsel. After such hearing, the writ was discharged, and the petitioner remanded to the custody of the sheriff. The district judge made the following findings, upon which said order was based: "That there has been no regular term of court within and for LaMoure county since the commitment of said Adams. At the May and September terms of said court no jury was drawn and in attendance. At the September term an information was filed against said defendant, whereupon he pleaded 'Not guilty.' The judge of said district court thereupon suggested and offered forthwith to summon a jury for the trial of said cause, which offer was declined by the defendant's counsel, T. A. Curtis. For several years past, it has been customary practice to summon a jury for LaMoure county at the winter terms only, and, since all eligible jurors in said county are farmers, it has been inconvenient and impracticable to secure the attendance of jurors during the farming season." Thereafter a petition for a writ was presented to this court. A written stipulation was entered into by counsel that said matter be heard on the application for the writ, upon the petition therefor, and a stipulation as to the facts shown in the return of the writ in the district court, and that a copy of the order of the district court remanding petitioner and discharging the writ, and of the findings upon which such order was based, should, for the purposes of this application, be considered as a part of the respondent's return and answer to said petition. The statute upon which relator relies reads as follows: "If any person shall be committed for a criminal or supposed criminal matter and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner; if such court at the second term shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the state, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case till the third term. If any such prisoner shall have...