State v. Gray

• Decision Date: 29 December 1964
• Docket Number: No. 38488,38488
• Citation: 30 O.O.2d 12,203 N.E.2d 319,1 Ohio St.2d 21
• Parties: , 30 O.O.2d 12 The STATE of Ohio, Appellee, v. GRAY, Appellant.
• Court: Ohio Supreme Court

Page 21

1 Ohio St.2d 21

203 N.E.2d 319, 30 O.O.2d 12

The STATE of Ohio, Appellee, v. GRAY, Appellant.

No. 38488.

Supreme Court of Ohio.

Dec. 29, 1964.

Syllabus by the Court

1. Sections 2945.71 to 2945.73, inclusive, Revised Code, which prescribe the period of time of person may be detained in jail or held by recognizance without trial after an indictment or information has been returned, are valid legislative enactments, the provisions of which are mandatory and must be strictly complied with by the state.

2. Where an accused was in jail at the time an indictment was returned against him and was thereafter detained in jail solely because of that indictment and without any trial thereon for a continuous period of more than two terms of court after the term in which that indictment was presented, where such accused filed an application in the latter of such terms, and also in the succeeding term, to be discharged because of such detention, where no continuance of the cause was had on such accused's motion and no delay was caused by any act of such accused, and where the state does not contend that it had used any reasonable effort to procure or been unable to obtain material evidence for the state in time for trial within such two terms after the term in which such indictment was presented, such accused is entitled to discharge from any further prosecution under such indictment. (State v. Cunningham, 171 Ohio St. 54, 167 N.E.2d 897; Johnson v. State, 42 Ohio St. 207, and Irwin v. State, 29 Ohio St. 186, distinguished.)

Appellant, Obie Gray, was arrested on or about April 17, 1962, and charged with the offense of burglary of an inhabited dwelling during the night season in violation of Section 2907.09, Revised Code of Ohio. Being unable to provide bond, he was remanded to the jail of the county where he remained until his trial, conviction and sentence.

On May 11, 1962, the Grand Jury of Hamilton County returned an indictment against appellant charging him with burglary of an inhabited dwelling in the night season.

The Court of Common Pleas of Hamilton County has four court terms during the year; the first or January term ending on March 31, the second or April term ending on June 30, the third or July term ending on September 30, and the fourth or October term ending on December 31.

On December 28, 1962, an application of appellant for discharge for failure to bring him to trial within the period of time provided by the statutes of Ohio was denied by the court. A similar application was denied on January 23, 1963. On February 13, 1963, a third such application in the form of a motion was overruled, but his trial was then commenced.

On February 15, 1963, the jury returned a verdict of guilty and, on the same day, appellant was sentenced to life imprisonment in the Ohio Penitentiary.

Appellant appealed to the Court of Appeals for Hamilton County, which court affirmed the judgment of the trial court.

A motion for leave to appeal to this court, having been allowed, the cause is now here for review.

Raymond E. Shannon, Pros. Atty., and Leonard Kirschner, Cincinnati, for appellee.

Allen Schwartz, Cincinnati, for appellant.

HERBERT, Judge.

An early or 'speedy' trial of accused persons is a protection to the rights of an individual which deeply concerned the authors of our federal and state Constitutions, and implementing legislation has been the object of case by the General Assembly of Ohio.

Section 10, Article I of the Constitution of the state of Ohio, is in part as follows:

'* * * In any trial, in any court, the party accused shall * * * have * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *.'

The implementing legislation consists of Sections 2945.71 to 2945.73, inclusive, Revised Code of Ohio, which follow:

Section 2945.71:

'No person shall be detained in jail without a trial for a continuous period of more than two terms after his arrest and commitment on an indictment or information, or, if he was in jail at the time the indictment or information was found, more than two terms after the term at which the indictment or information was presented. He shall be discharged unless a continuance is had on his motion or the delay is caused by his act.' (Emphasis added.)

Section 2945.72 provides:

'A person shall not be held by recognizance without trial for a period of more than three terms to answer an indictment or 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:

'When application is made for the discharge of a person under section 2945.71 or 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 or section 2945.71 or 2945.72 of the Revised Code is a bar to further prosecution for the same offense.'

It appears clear that the General Assembly intended to distinguish between rights accorded an accused person 'detained in jail' and one admitted to bail, when it enacted sections 2945.71 and 2945.72 of the Revised Code.

Appellant was held in jail without trial from April 17, 1962, until February 15, 1963, a period of about 10 months, or more than two terms after the term in which he was indicted.

Appellant did not request a continuance, nor did he contribute to the delay in his trial in any manner whatsoever, but on the contrary filed three separate applications for discharge as provided by statute--one on December 18, 1962, a second one on January 2, 1963, and the third such application on February 13, 1963, whereupon he was finally brought to trial. On February 15, 1963, the jury returned a verdict of guilty, and, on the same day, appellant was sentenced to life imprisonment in the Ohio Penitentiary.

The record in the instant cause discloses that the state took the deposition of a witness in Florida on August 13, 1962. All other material evidence was available to the state for presentation at a trial. Both the state and the defense were then and there ready to proceed to trial in the third term of court ending on September 30, being the first term after return of the indictment. The accused was not brought to trial during the fourth term of 1962, being the second term following return of the indictment and also the term 'thereafter,' as is provided in Section 2945.71 of the Revised Code, supra. Furthermore, he was not brought to trial until February 13 during the first term of 1963, to wit, the January term, five and one-half months after both sides were ready and willing to go to trial and more than two full terms after the term in which the indictment was returned.

In State v. Cunningham, 174 Ohio St. 54, 167 N.E.2d 897, the accused was 'held to recognizance.' He filed an application for discharge during the time limited by Section 2945.72, Revised Code. The application was denied upon a showing specified in Section 2945.73 of the Revised Code that he was not entitled to discharge. Furthermore, a continuance was granted upon sufficient grounds.

In the case at bar, none of the reasons for delay in setting the cause for trial as provided by the statutes was present.

Johnson v. State, 42 Ohio St. 207, is readily distinguished from the case at bar. Several continuances were granted without showing the reasons therefor on the record. The court ruled, paragraph one of the syllabus, '* * * the court will presume the continuance was upon sufficient ground in the absence of anything in the record to the contrary * * *.' Further delay was occasioned by absence of material witnesses.

In Erwin v. State, 29 Ohio St. 186, the accused made application for discharge for the reason that he was not brought to trial before the end of the third term after the indictment was found. The application was filed on the 13th day of September 1875, being two days before the end of the term. The court refused the application on September 15, the last day of the third term. The court, in its opinion, at page 189, has the following to say on this point:

'Two days thereafter,...