State v. Cunningham

• Decision Date: 25 May 1960
• Docket Number: No. 36269,36269
• Citation: 171 Ohio St. 54,167 N.E.2d 897
• Parties: , 12 O.O.2d 59 STATE of Ohio, Appellant, v. CUNNINGHAM et al., Appellees.
• Court: Ohio Supreme Court

Page 54

171 Ohio St. 54

167 N.E.2d 897, 12 O.O.2d 59

STATE of Ohio, Appellant, v. CUNNINGHAM et al., Appellees.

No. 36269.

Supreme Court of Ohio.

May 25, 1960.

Syllabus by the Court.

1. To entitle an accused held to recognizance on a criminal charge to a discharge on the ground that he was not brought to trial during the time limited by Section 2945.72, Revised Code, he must make application to the court therefor, and, where he makes such application and the state makes the showing specified in Section 2945.73, Revised Code, he will not be entitled to a discharge. (Paragraph three of the syllabus of Ex Parte McGehan, 22 Ohio St. 442, approved an followed.)

2. Where a criminal cause is continued without disclosing the ground for such continuance, it will be presumed that the continuance was upon sufficient ground, in the absence of anything in the record to the contrary, notwithstanding the provisions of Sections 2945.72 and 2945.73, Revised Code. (Paragraph one of the syllabus of Johnson v. State, 42 Ohio St. 207, approved and followed.)

3. The provisions of Section 2945.73, Revised Code, Deny the power to grant to the state more than one continuance by reason of the absence of material evidence, but the granting of one continuance for that reason does not deprive the court of the power to continue the cause again for the reasons stated in Section 2945.72, Revised Code, notwithstanding that the accused asks to be discharged under such sections. (Paragraph two of the syllabus of Johnson v. State, 42 Ohio St. 207, approved and followed.)

Defendants, hereinafter designated appellees, were jointly indicted at the April 1956 term of the Court of Common Pleas of Columbiana County for burglary. This indictment was one of a series of indictments involving these appellees and several other defendants not involved in this appeal. Several trials were had on some of the indictments, and various appeals were taken during 1956 and 1957.

In the meantime, no trial on the indictment of the appellees herein was had, and nothing was done except that an oral request was made during the September 1957 term by counsel for one of the appellees to the prosecuting attorney that 'some disposition' be made of this case.

During the January 1958 term, a motion to quash the indictment was filed on behalf of appellees, and on February 4, 1958, the Court of Common Pleas overruled the motion, stating, in part, in its journal entry:

'* * * the court finds that no demand was made by any of the defendants herein, or by their counsel, upon the state in the person of the prosecuting attorney, or upon the court, that their cases be tried within three terms following the April term of court 1956, when the indictments were returned. The court further finds that there is material evidence for the state which the state had not heretofore been able to procure, that a reasonable effort has been made to procure it and that there is just ground to believe that such evidence can be had at the next term, or even during the present term of court.'

Appellees were not brought to trial during the ensuing April 1958 term of court, and at the end of that term the following entry (not included in the record herein and apparently not before the Court of Appeals but furnished to this court by agreement of counsel) was journalized by the Court of Common Pleas:

'Journal 141, page 90

'In re: April term

'It is ordered, that all cases, criminal and civil motions, demurrers and all matters now pending in this court and not otherwise disposed of and the same are hereby continued to the next regular term thereof.

'This separate session of this Court of Common Pleas for the 7th Judicial District for the April term 1958 was begun on the 7th day of April and continued from day to day by regular adjournments without day.'

At the beginning of the September 1958 term, motions to quash the indictment were again made and overruled. The case was then assigned for trial, and, by separate verdicts, appellees were found guilty and sentences were imposed upon the verdicts.

Upon a joint appeal, the Court of Appeals, in a single entry, reversed the judgments of conviction and ordered the discharge of the appellees for the reason that they had not been brought to trial under the 'speedy trial' provision of Section 10, Article I of the Constitution, and the specific limitations prescribed by Section 2945.72, Revised Code.

The cause is before this court upon the allowance of a motion for leave to appeal.

G. William Brokaw, Pros. Atty., Lisbon, for appellant.

Hugo Alexander, Steubenville, and S. Samuel Fekett, Youngstown, for appellees.

BELL, Judge.

The constitutional guaranty of a speedy trial provided in Section 10 of Article I has been implemented by Sections 2945.71, 2945.72 and 2945.73, Revised Code. Section 2945.72 reads as follows:

'A person shall not be held by recognizance without trial for a period of more than three terms to answer an indictment of information, not including a term at which a recognizance was first taken thereon, if taken in term time. He shall be discharged unless a continuance is had on his motion, or the delay is caused by his act, or there is not time to try him at such third term, in which case he shall be brought to trial at the next term or be discharged.' Section 2945.73 reads as follows:

'When application is made for the discharge of a person under section * * * 2945.72 of the Revised Code, if the court is satisfied that there is material evidence for the state which cannot be had, that reasonable effort has been made to procure it, and that there is just ground to believe that such evidence can be had at the next term, the cause may be continued and the prisoner remanded or admitted to bail. If he is not brought to trial at the next term thereafter, he shall then be discharged. The discharge of the accused under this section * * * is a bar to further prosecution for the same offense.'

Section 2945.71 is substantially the same as Section 2945.72, except that it gives to one detained in jail the right to trial within two terms.

These statutes, in substantially the same form, have been in effect in Ohio since the adoption of the Code of Criminal Procedure in 1869 (66 Ohio Laws, pp. 287, 311). They have not escaped judicial review during that time.

In Ex parte McGehan, 22 Ohio St. 442, the court had under consideration Sections 161 and 163 of the Criminal Code. Section 161 was the substantial equivalent of Section 2945.71, Revised Code, and the language therein differs from that of Section 2945.72, Revised Code, only in that the latter deals with one held to recognizance rather than with one detained in jail.

In the McGehan case, the court, in an opinion by Welch, C. J., said:

'In the light of both these sections, it is quite evident that an 'application' by the defendant during the term, at the end of which he is entitled to his discharge, is contemplated. It is only 'when application is made for the discharge,' that the state has a right to continue for the causes specified in Section 163 [now Section 2945.73, Revised Code].'

In Erwin v. State, 29 Ohio St. 186, 23 Am.Rep. 733, the court had under consideration Sections 162 and 163 of the Criminal Code. There the court said:

'When the above section [Section 162, now Section 2945.72, Revised Code] is considered with Section 163, following, it is clear that a defendant can not be discharged for the reason stated, except upon an application to the court during a term thereof * * *.'

It would thus appear from those cases that the discharge of an accused is not automatic at the end of two terms, if he is held in jail, or three terms, if held to recognizance. And this appears to be the general rule in this country. In 14 American Jurisprudence, 863, Section 138, it is said:

'The right of the accused to a discharge for the failure of the prosecution to put him on trial within the required time may be waived by his own conduct, even in capital cases. He must claim his right if he wishes its protection. Silence on his part cannot be construed as a demand for trial. If he does not make a demand for trial or resist a continuance of the case, or if he consents to continuances, goes to trial without objecting that the time limit has passed, or fails to make some kind of an effort to secure a speedy trial, he will not be in a position to demand a discharge because of delay in prosecution.'

In the McGehan case, supra, the court recognized that the provisions of either Section 161 or 162 (now Sections 2945.71 and 2945.71, Revised Code), standing alone, would seem to give an accused the right to be discharged at any time after the end of the second term (or third term), simply for the nonaction on the part of the state in failing to bring him to trial. But the court refused to consider that section except in connection with Section 163 (now Section 2945.73, Revised Code) and held that if an accused desires his discharge under the provisions of Section 161 (or Section 162) he must make an application therefor. Paragraph three of the syllabus of that case reads as follows:

'To entitle a prisoner to such discharge, on the ground that he has not been brought to trial during the time limited by Section 161 or 162, he must make application to the court therefor, and if when he makes such application, whether during the time so limited, or at a subsequent term of the court, the state is ready to proceed with the trial, or makes the showing specified in Section 163 for a continuance, he will not be entitled to be discharged.' (Emphasis added.)

In the Erwin case, supra, the application for discharge was made two days before the end of a term and overruled on the last day of the term, at which time there was no time to try the cause at that term. At the time of the application for discharge, the state was ready to proceed to trial, and trial was had at the next term. The court held in paragraph...