State v. Dinger
| Decision Date | 09 April 1924 |
| Docket Number | 22635 |
| Citation | 199 N.W. 196,51 N.D. 98 |
| Court | North Dakota Supreme Court |
Rehearing denied June 2, 1924.
Appeal from the District Court of Renville County, North Dakota Buttz, J.
Affirmed.
E. R Sinkler and G. O. Brekke, and Fisk & Nash, for appellant.
George F. Shafer, Attorney General, and John Thorpe, Assistant Attorney General, and Geo. I. Rodsater, Prosecuting Attorney by appointment, for the State.
This is an appeal from a judgment of conviction entered upon the verdict of a jury and from an order denying a motion to dismiss. The defendant was found guilty of the crime of transporting intoxicating liquor in violation of chapter 97, Session Laws, 1921, of the state of North Dakota.
The defendant was arrested and bound over to the district court in June, 1921. He was informed against at the January, 1922, term of the district court of Renville county. At that term a jury was called, but the case against the defendant was postponed over the term at his own request. There was no jury term either in July, 1922, or in January, 1923. Defendant was tried and convicted at the regular June, 1923, term of the district court of Renville county.
Eighteen errors are assigned by the appellant, but the argument on this appeal for a reversal centers mainly on two points made in the trial court, namely, that the action should have been dismissed for the reason that two regular terms were passed, namely the July, 1922, term and the January, 1923, term of the district court, without bringing the case to trial, in violation of defendant's right to a speedy trial; and that the liquor was taken from defendant at the point of a gun and, therefore, should not have been received in evidence at the trial over defendant's objection.
Section 11,166, Comp. Laws, 1913, reads as follows:
Chapter 167, Session Laws, 1919, provides:
"The terms of court shall be held in each county in the several judicial districts and the location of the judges' chambers shall be fixed by order of the supreme court in such manner that the judges in each judicial district may have a circuit within their districts and so that no judge shall hold two consecutive jury terms of court in any county except in the county of Cass."
The supreme court, by rules, effective August 15, 1920 (see also Comp. Laws, 1913, § 11,167, 41 N.D. 689, 180 N.W. VII.), designated the time for holding jury terms in Renville County for the fourth Monday in January and the second Tuesday in July of each year. By rule 24 it is provided that in case it appears to the district judges that the business is insufficient to warrant the holding of a general term in any county in their district, the district judges may determine not to call a general term in such county.
Section 13 of the Constitution provides that "in criminal prosecutions in any court whatever the party accused shall have the right to a speedy and public trial."
It is contended by the appellant that by virtue of the statutory and constitutional provisions quoted, it was the duty of the state to proceed to try him either at the July, 1922, term or at the January, 1923, term of the district court, altho a jury was not present or called at either term.
It must be noted that the trial was postponed upon the application of the defendant and went over the January, 1922, term of the district court, when the state was ready to proceed with the case. The defendant was at all times out on bail and did not suggest or demand that he be tried at either term. He made no objection to the delay at any time until his case was called, when he objected to the introduction of any evidence on the ground that the court had no jurisdiction because of the delay, and moved to dismiss on the same ground.
Section 11,166, supra, makes effective the provisions of § 13 of the Constitution, guaranteeing a speedy trial to a person accused of crime. The underlying purpose of this constitutional provision is to provide protection to a person accused of crime against arbitrary detention or imprisonment upon a criminal charge without an opportunity to vindicate his innocence in a trial at law. While the purpose of the provision for a speedy trial is primarily to protect the rights of the accused, it should not be so construed as to defeat the due and orderly administration of justice and to enable the guilty to escape the just and lawful consequences of their crimes. It is intended to protect the right of the innocent, as well as of the guilty, to have the question of his guilt or innocence promptly investigated, that is, the provision is intended to operate in the interest of justice. That conclusion necessarily requires that the courts recognize the interest of the public in law enforcement and in the punishment of persons who violate the penal laws.
It is not necessary to enter into a consideration of the meaning of words or phrases used in section 11,166, supra. The record affirmatively shows that the case was postponed upon the application of the defendant; that the defendant at no time resisted the postponement of the trial over the two intervening terms at which no jury was called and that he did not demand, at any time, a trial at either of such terms. He made no effort of any kind to obtain a speedier trial than was ultimately accorded him. The defendant was not, under the facts in the record, entitled to a discharge in the absence of a showing either of a resistance to the postponement, or of an effort of some kind to obtain a trial at either one of the intervening terms. State v. Rowley, 198 Iowa 613, 198 N.W. 37; State v. Miller, 72 Wash. 154, 129 P. 1100; State v. O'Connor, 6 Kan.App. 770, 50 P. 949; Parker v. State, 7 Okla.Crim. 238, 122 P. 1116; State ex rel. Eubanks v. Cole, 4 Okla.Crim. 25, 109 P. 736; Head v. State, 44 L.R.A. N.S. 871 and note (9 Okla.Crim. 356, 131 P. 937); Bowes v. State, 7 Okla.Crim. 316, 126 P. 580. See also note in 56 L.R.A. 538, where the collected authorities support the rule that an accused is not entitled to a discharge for delay, unless it appears that he resisted postponement, demanded a trial, or made some effort to procure a speedier trial than the state accorded him.
Section 115 of the state Constitution is referred to by counsel for the appellant. This section provides that "the time of holding courts in the several counties of a district shall be as prescribed by law, but at least two terms of the district court shall be held annually in each organized county. . . ." It is suggested that the authorities cited in this opinion from the state of Oklahoma are not in point because no such provision is found in the Constitution of that State. Section 9, article 7, of the Constitution of Oklahoma, however, contains a requirement, in substantially identical language, that two regular terms shall be held in each organized county. It is insisted that this constitutional provision is mandatory and requires the holding of at least two jury terms in every county. This contention we think is wholly untenable. By "term" as used in the section quoted, we think is meant a term of the district court at which litigants may present causes for hearing and for trial, and that the holding of a court term, without a jury, complies with § 115. The right of the accused to a speedy trial, secured by § 13 of the Constitution, under the facts in the record was not violated by the failure of the district judge of Renville county to call a jury at either the July, 1922, or the January, 1923, term of the district court therein. It is a matter of common knowledge in this state that in some counties a period of a year or more elapses without the necessity of calling a jury, and to put the public to that expense without the necessity therefor, because of the constitutional provision adverted to, would be to impute to the makers of the Constitution a lack of sense and foresight negatived by the other wise provisions of that instrument, and at the same time to compel the incurring of needless and useless expenditures of public money.
It is not here suggested or held that the constitutional right to a speedy trial of one accused of crime may be nullified or the consequences of denial thereof, prescribed in § 11,166, supra, avoided, by failing to provide for terms of court as required by § 115; or by the simple device of failing or neglecting to call a jury at a regular term of court.
This court has had § 11,166 before it in at least two cases where it received somewhat extended consideration. State v. Foster, 14 N.D. 561, 105 N.W. 938; and State v Fleming, 20 N.D. 105, 126 N.W. 565. In State v. Foster, this court held that the phrase "regular term" used in subdivision 1 of § 11,166, supra, meant a term "equipped with a jury for the trial of cases, and not a mere statutory term without a jury." It is difficult to see why a different meaning should be ascribed to the word "term" as used in the...
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