State v. Dewey
| Decision Date | 12 May 1906 |
| Docket Number | 14,795. 14,796. 14,797 |
| Citation | 73 Kan. 735,85 P. 796 |
| Parties | THE STATE OF KANSAS v. CHAUNCEY DEWEY, J. W. MCBRIDE, AND CLYDE WILSON. THE STATE OF KANSAS v. CHAUNCEY DEWEY, J. W. MCBRIDE, AND CLYDE WILSON. THE STATE OF KANSAS v. CHAUNCEY DEWEY, J. W. MCBRIDE, AND CLYDE WILSON |
| Court | Kansas Supreme Court |
Filed May 12, 1906.
Filed October 6, 1906.
FiledFebruary 9, 1907.
Appeals from Norton district court; ABEL C. T. GEIGER, judge. First opinion filed May 12, 1906. Affirmed. Rehearing granted October 6, 1906. Second opinion filed February 9, 1907. Reversed.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Continuance--Discharge--Waiver. A person under indictment and held to bail who claims the right to be discharged because he has not been brought to trial before the end of the third term of court held after the indictment was found or information filed must bring himself within the spirit and intention of the statute in order to be entitled to its benefits. His rights under the statute may be waived. If he has consented to a continuance of his cause at the third or any subsequent term, or failed to object to such continuance made when he was present, such term cannot be claimed by him as one of the terms at which he should have been brought to trial. (See post, p. 739.)
2. CRIMINAL LAW--Discharge--Acquittal. The discharge of a person under indictment when not brought to trial, as provided in section 221 of the code of criminal procedure (Gen. Stat. 1901, § 5666), amounts to an acquittal of the offense charged.
C. C. Coleman, attorney-general, and F. S. Jackson, assistant attorney-general, for The State.
Waters & Waters, for appellants.
OPINION
In the first of these cases appellants were charged with assault with intent to kill Roy Berry, in the second with murder in the first degree for the killing of Alpheus W. Berry, and in the third with murder in the first degree for the killing of Daniel P. Berry.
On May 1, 1905, the first day of the regular May term of court, appellants filed motions in each case, under section 221 of the code of criminal procedure (Gen. Stat. 1901, § 5666), asking to be discharged on the ground that more than three terms of court had elapsed after indictment without their having been brought to trial. On the 2d day of May these motions were denied; at the same time, upon the request of the county attorney, and over the objections of appellants, the court entered an order in each case dismissing it "without prejudice." Exceptions were saved, and the appellants bring the causes here for review. Error is alleged in the rulings on the motions of appellants and in the entering of the orders requested by the county attorney.
The record in each case discloses that the information was filed in the district court of Cheyenne county on December 2, 1903. On the application of defendants the venue was changed to Norton county, and a certified copy of the information was filed in the district court of that county January 12, 1904. The regular February term of the district of Norton county convened February 1, 1904, and at this term the cases were continued by the court. At the regular May, 1904, term of the court orders were entered for continuances over the term on account of there being no jury in attendance, none having been called. On the last day of the regular September, 1904, term of the court continuances were ordered by consent of the parties. The regular February, 1905, term of court convened February 6, 1905, at which time defendants appeared and announced themselves ready for trial, and the cases were passed until a later day. Afterward they were continued over the term, defendants being present and making no objection. The defendants were on bail during all the time from the filing of the informations.
There are two questions raised: (1) Whether the court erred in denying the applications of appellants to be discharged; (2) whether error was committed in dismissing the actions without prejudice. The consideration of the first will necessarily dispose of the second. Our statute reads as follows:
"If any person under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to such offense, unless the delay happen on his application or be occasioned by the want of time to try such cause at such third term." (Gen. Stat. 1901, § 5666.)
There is some diversity of opinion among the members of the court with respect to the proper construction to be given this statute. According to one view, the words "before the end of the third term of court...
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State v. Pierson, 35358.
...State v. Nelson, 279 S.W. 402; State v. Wear, 145 Mo. 218; Ware v. State, 159 Ark. 159; People v. Foster, 246 N.W. 60; State v. Dewey, 73 Kan. 735; Rose v. State, 6 Pac. (2d) 1072; State v. McTague, 173 Minn. 153; Worthington v. United States, 1 Fed. (2d) 154; Poffenbarger v. United States,......
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State v. Pierson
... ... discharged under Section 3696-3699, Revised Statutes 1929 ... Secs. 3696, 3697, 3698, 3699, R. S. 1929; State v ... Nelson, 279 S.W. 402; State v. Wear, 145 Mo ... 218; Ware v. State, 159 Ark. 159; People v ... Foster, 246 N.W. 60; State v. Dewey, 73 Kan ... 735; Rose v. State, 6 P.2d 1072; State v ... McTague, 173 Minn. 153; Worthington v. United ... States, 1 F.2d 154; Poffenbarger v. United ... States, 20 F.2d 42; State v. Harp, 6 S.W.2d ... 562. (5) The court did not err in overruling the ... appellant's special plea ... ...
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...acquittal. (State v. Garthwaite, 23 N. J. L. 143; State ex rel. v. Larson, (N. D.) 97 N.W. 537; In re. McMicken, (Kan.) 18 P. 473; State v. Dewey, 73 Kan. 735.) following additional cases are cited upon the proposition that the statute is imperative and that the defendant is entitled to his......
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