State v. Fromkin

• Decision Date: 01 March 1963
• Docket Number: No. 35300,35300
• Citation: 120 N.W.2d 25,174 Neb. 849
• Parties: The STATE of Nebraska, Appellant. v. M. Robert FROMKIN, Appellee.
• Court: Nebraska Supreme Court

Page 25

120 N.W.2d 25

174 Neb. 849

The STATE of Nebraska, Appellant. v. M. Robert FROMKIN, Appellee.

No. 35300.

Supreme Court of Nebraska.

March 1, 1963.

Syllabus by the Court.

1. If an accused is brought to trial within the statutory time after indictment or information, and such trial results in a mistrial from disagreement of the jury, accused cannot ignore the mistrial and claim a discharge or mistrial on the ground that he was not tried within the time fixed by the statute.

2. Under section 29-2023, R.R.S.1943, a mistrial because of disagreement of the jury shall be without prejudice to the prosecution to the State's right to retry a defendant.

3. The Legislature has interpreted the Constitution on a matter of a speedy trial and has fixed what, in certain cases and under certain conditions, is regarded as the maximum time in which a defendant must be tried. The interpretation of this constitutional provision is for the court, but the maximum time fixed by the Legislature is a reasonable one, and we adopt it as our own.

4. After the statutory requirements are satisfied as to the first trial, the time for retrial is within the sound discretion of the court; provided, that it may not extend beyond the statutory limits provided for the first trial.

5. In computing the terms required by the statute with relation to the time within which the defendant must be brought to trial, the term in which the information is filed is excluded.

6. Evidence examined, and it is found that there was no abuse of discretion by the trial court considering all of the circumstances surrounding the determination of the time for the retrial of the defendant.

Clarence A. H. Meyer, Atty. Gen., Lincoln, Rush C. Clarke, Special Asst. Atty. Gen., North Platte, for appellant.

John J. Powers, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

WHITE, Chief Justice.

The questions involved in this case concern the proper construction and application of our constitutional provision with relation to speedy trial, Article I, section 11, Constitution of Nebraska, and the statute relating thereto being section 29-1203, R.R.S.1943. The statute provides: 'If any person indicted for any offense, who has given bail for his appearance, shall not be brought to trial before the end of the third term of the court in which the cause is pending, held after such indictment is found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay shall happen on his application, or be occasioned by the want of time to try such cause at such third term.' (Emphasis supplied.)

The general questions arising out of the assignments of error may be more precisely stated as follows:

1. Does a mistrial during the third term, due to disagreement of the jury, constitute a compliance with the statute on behalf of the State?

2. If the State is entitled to retry a defendant after mistrial occurring during the third term, within what period of time must he be brought to trial again in the succeeding terms of court?

For purposes of clarity, the pertinent facts break down into three distinct periods for consideration. The first period is as follows: The defendant, felony charged, was informed against on February 4, 1960, during the September 1959 term of the district court for Douglas County, Nebraska. Bail was given. The February term of court commenced on February 8, 1960, and adjourned on April 30, 1960. The May term commenced on May 2, 1960, and adjourned on September 17, 1960. The September term commenced on September 19, 1960. On September 26, 1960, the defendant was arraigned in district court, pleaded not guilty, a jury was empaneled and sworn, evidence was introduced, the jury instructed, and it retired for deliberation. A disagreement of the jury resulted, and a consequent mistrial was declared by the court on September 28, 1960. It appears that all of the district judges of the Douglas County district court disqualified themselves, that another district judge from outstate was called in to try the case, and that various motions and a demurrer to the information were ruled on during the second term of court after the information was filed on June 13, 1960.

Period 2: The September term, during which the mistrial occurred, expired on February 11, 1961. In the first term after the term in which the mistrial occurred, namely, the February 1961 term, the defendant was not tried again. This term expired on May 6, 1961, and during the second term subsequent to the mistrial, namely, the May 1961 term, the defendant was retried. Again, the jury was unable to agree, a mistrial was declared, and it was discharged for this reason on May 27, 1961. This term of court expired on September 16, 1961. Again, the regular district judges were disqualified, and the trial was conducted by the same district judge from outstate. No objection, by the defendant, was raised as to his second trial, nor was there any motion for discharge or issue raised as to whether the statute, or constitutional provision referred to herein previously, was complied with.

Period 3: The May term in which the second mistrial was held expired September 16, 1961. During the next, or September term, the defendant was not tried again nor did he request, in any manner, a trial. This time, the disqualification of the regular judges continuing, another and different district judge was called in to preside over further proceedings in the case. The September term, or the first term after the second mistrial, expired on February 12, 1962. The defendant filed his amended motion for discharge on March 16, 1962, and on the following day, March 17, 1962, the court entered its order discharging the defendant. The court found specifically that four terms of court had elapsed after the term in which the information was filed during which the defendant was not brought to trial, including the February and May 1960 terms of court, the February 1961, and September 1961 terms of court and on that ground alone. The theory upon which this finding was based was specifically stated in a memorandum by the trial court holding that the terms of court in which the jury disagreed are excluded in the counting of terms under section 29-1203, R.R.S.1943. From this judgment of discharge, the State has appealed.

We refer now to the facts set out in period 1 above. In computing the three terms required by the statute, the term in which the information is filed is excluded. Whitner v. State, 46 Neb. 144, 64 N.W. 704. The disagreement of the jury and mistrial occurred during the third term after the information was filed. The significance of this mistrial with relation to compliance with the statute is essential in the determination of this case. The trial court held that the mistrial without verdict does not constitute compliance with the statute; excluded this term entirely from consideration; found that there was a total lapse of four terms before the second trial in May 1961 which, in turn, again must be excluded on the same theory; and that the defendant, therefore, was entitled to discharge.

We do not agree with this conclusion. The statute is not capable of double interpretation or ambiguity. The Legislature chose the words 'brought to trial,' as the testing yardstick of compliance. Under the facts that we have recited, everything was complete about the trial during the third term of September 1960, except the unfortunate circumstance of the jury being unable to agree upon a verdict. To construe the words in the statute 'brought to trial,' to mean, in effect, a mandatory requirement that the trial must result in verdict, would do violence to the plain meaning of the statutory language. This statute imposes a duty upon the prosecution. It appears evident that everything within the power of the prosecution was done to complete the trial, but that the jury itself was unable to reach a verdict.

The significance of a mistrial due to disagreement has been legislatively defined in section 29-2023, R.R.S.1943, of our code of criminal procedure. It provides as follows: 'In case a jury shall be discharged * * * after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge shall be entered upon the journal; and such discharge shall be without prejudice to the prosecution.' (Emphasis supplied.) The emphasized language in this statute contains no qualification. We can see no room in the language of these statutes for a distinction which would support the trial court's conclusion completely nullifying the effect of this mistrial occurring during the third term. To hold otherwise would be to judicially excise two pertinent provisions from the applicable statutes. The defendant was 'brought to trial,' and a mistrial must be 'without prejudice' to the State's right to a retrial. This construction follows the plain and unambiguous language of the two statutes involved. Construing the statutes in pari materia, it is the only possible way to harmonize their meaning within the framework of their obvious purpose. This interpretation also appears to be the majority rule, even in jurisdictions where the statute mandates 'trial,' and where there is no special statute requiring that mistrial shall be without prejudice to the prosecution.

As stated in 22A C.J.S. Criminal Law § 472(3), p. 60: 'If accused is tried within the statutory time after indictment, information, or commitment, and such trial results in a mistrial, as when the jury fail to agree, accused cannot ignore the mistrial and claim a discharge or dismissal on the ground that he was not tried within the time fixed by the statute providing for that relief. * * * Cal.--People v. Pierson, 307 P.2d 994, 149 C.A.2d 151--People v. Cryder, 202 P.2d 765, 90 C.A.2d 194--People v....