State v. Keefe

Decision Date19 November 1908
CourtWyoming Supreme Court

RESERVED questions, from the District Court, Albany County HON. CHARLES E. CARPENTER, Judge.

Frank J. Keefe, having been charged with the crime of murder in the first degree upon two informations, each charging the killing of a different person, though at the same time, was tried upon one, convicted of manslaughter, and sentenced to four years imprisonment in the penitentiary. After his release from such imprisonment he was again arrested upon the remaining information, and he moved to be discharged for delay in prosecution. The questions arising upon said motion were reserved by the order of the district court for the decision of the supreme court. The other facts are stated in the opinion.

H. V S. Groesbeck and W. R. Stoll, for the defendant.

There is in reality but one question before the court, and that is whether Keefe's imprisonment in the penitentiary placed him beyond the guaranty of the Constitution as to a speedy trial, or beyond the right to insist upon the provisions of the statute. All other questions are incidental to this one. A defendant's right to a speedy trial is elementary and was secured at common law by the commission of jail delivery which resulted in the jails being cleared, and the prisoners convicted or being punished or given their liberty twice in each year. The common law idea has always been enforced in this country and the defendant has been discharged even after a brief confinement unless extraordinary circumstances seemed to render it unjust to the State to discharge the prisoner without giving it a fair opportunity to prepare its case for trial. That seems to be the rule in states where there has been no statute limiting the time within which a defendant shall be brought to trial. (12 Cyc. 498; U. S. v Fox, 3 Mont. 512; Ex parte Stanley, 4 Nev. 113; Sample v. State, 138 Ala. 259; Dudley v. State, 55 W.Va. 472.) The constitutional guaranty of a speedy trial applies to every accused, which means a prisoner against whom a formal accusation is lodged in the regular order of proceedings recognized in courts of justice. The statute is merely a legislative construction of the constitutional provision, and Section 5382 clearly applies to the defendant. He was a prisoner; had been committed for the offense of murder; had been committed to prison under the indictment; and was still imprisoned until at least February 12, 1907. The defendant was in the penitentiary under sentence of the court, and all the state had to do was to bring him from the penitentiary and thus present him in court for trial. The provisions of the statute are imperative and mandatory. (12 Cyc. 499-500; 1 Bish. Cr. Pr., Sec. 951; Robinson v. State, 12 Mo. 592; Fanning v. State, 14 Mo. 386; In re. Spradlend, 38 Mo. 547; State v Cox, 65 Mo. 29; State v. Marshall, 115 Mo. 383; State v. Steen, 115 Mo. 474; State v. Ashcraft, (Mo.) 8 S.W. 216; State v. Riddle, (Mo.) 78 S.W. 606; State v. Wear, 145 Mo. 163; Kibbler v. Com., 94 Va. 804; Ex parte McGehan, 22 O. St. 442.) The discharge provided for is in effect an 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.)

The following additional cases are cited upon the proposition that the statute is imperative and that the defendant is entitled to his discharge where the delay was not caused upon his application and there has been no providential reason preventing the trial. People v. Morino, (Cal.) 24 P. 892; In re. Begerow, 133 Cal. 349; State v. Faskett, 5 Rich., (S. C.) 255; State v. Kuhn, 154 Ind. 450; Guthman v. People, 203 Ill. 260; People v. Heider, 225 Ill. 347; Dudland v. State, 126 Ga. 580; Brooks v. People, 88 Ill. 327; State v. Breaw, 45 Ore. 586; State v. Riddle, 179 Mo. 287; State v. Larson, 12 N.D. 474; Graham v. State, (Ga.) 57 S.E. 1055; State v. Pratt, (S. D.) 107 N.W. 538; State v. Van Waters, 36 Wash. 358; State v. Kellison, 56 W.Va. 690; State v. Wigger, 196 Mo. 90; Newling v. People, 221 Ill. 166; Shakel v. People, 111 Ill.App. 509; In re. Jay, (Ida.) 79 P. 202; State v. McDaniel, (Del.) 54 A. 1056; Lowe v. State, 118 Wis. 641; State v. Campbell, (Kan.) 85 P. 784; Burnett v. State, (Ark.) 88 S.W. 956; People v. Farrington, 140 Cal. 656; People v. Chadwick, 143 Cal. 116. The following cases sustain the proposition that legislative provisions similar to our statute constitute a construction of the constitutional provision. Shakell v. People, 111 Ill.App. 509; Ochs v. People, 124 Ill. 399; People v. Matson, 129 Ill. 591; State v. Larson, 12 N.D. 474; Graham v. State, (Ga.) 57 S.E. 1055; State v. Pratt, (S. D.) 107 N.W. 538.

The fact of the defendant's confinement in the penitentiary constitutes no excuse for the failure to bring him to trial. It cannot logically be asserted that he could not have been brought to trial by reason of his confinement in the penitentiary. If he had been needed for any purpose whatever in any judicial proceeding before any court in the state, his presence could have been secured. Even at common law an attainted man could be reached by the writ of habeas corpus ad prosequendum. It is a matter of common knowledge that a prisoner confined in the penitentiary may not only be brought to trial for an offense committed there but for a previous offense. This is elementary. Section 5382 applies by its own terms to any person in prison; and, as the county jail and the state penitentiary are equally a prison, the statute necessarily applies in one case as well as in the other. A "prison" means any place where persons convicted of or charged with a crime are confined, either awaiting trial or serving a sentence, and therefore, includes a penitentiary. (2 Abb. L. Dict.)

The object of the administration of the law is not to defeat justice but to do justice, and its object might easily be frustrated if a person confined in a penitentiary for a period of years could not be brought to trial for another offense until the expiration of his first term of confinement; and the principle must apply whether the term be long or short. It seems to be well settled that a person confined in a penitentiary under a sentence may be tried for another offense before the expiration of his sentence. (3 Blackstone Com. (Church's Ed.) 686-688; 4 Id., (Chase's Ed.) 1034-1039; 1 Abb. Law Dict., 105-106; 1 Bish. Cr. L., Secs. 953, 966-970; 21 Cyc. 353; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, (Cal.) 3 P. 597; People v. Flynn, (Utah) 26 P. 1114; Clifford v. Dryden, (Wash.) 72 P. 96; State v. Connell, 49 Mo. 282; Dudley v. State, 55 W.Va. 472.)

Under the circumstances and upon the authorities we think it must be held that neither the district court of Albany County nor any other court has any right to try the defendant under the pending information, and that he is entitled to an immediate discharge.

S. C. Downey, County and Prosecuting Attorney of Albany County, and N. R. Greenfield, County and Prosecuting Attorney of Carbon County, for the State.

The questions reserved do not seem to involve anything more than the construction of the statutes, and we fail to see that they present a constitutional question. The constitutional provision relating to a speedy trial means that the accused shall have a speedy trial in view of all the circumstances in the case, and hence what would be a reasonable time in one case might be wholly unreasonable in another. The spirit, purpose, intent and history of the constitutional and statutory provisions on the subject should be taken into consideration in construing and applying them as well as the strict letter of the law. The purpose of such provisions is undoubtedly to prevent oppression and vexatious delays on the part of the State, after a defendant has been informed against and imprisoned. In the case at bar the State has done nothing to prevent the defendant from being placed on trial. While he was confined in the penitentiary the other charge remained pending against him, and the State was at all times willing to prosecute him. The theory of the State was and is that it was the duty of the defendant to present himself to the court if he desired a trial before the expiration of his other sentence. By going to the penitentiary he placed himself in practically the same position as though he had become a fugitive from justice.

It has been repeatedly held that such a statute does not apply in case of a mistrial, providential hindrance, failure to secure a jury, destruction of a court house, nolle prosequi and filing of a new information, or want of time to try the case; and the authorities are uniform in holding that the statute does not apply to a prisoner who has escaped. Had the defendant been imprisoned by reason of the information in this case, it, perhaps, would have devolved upon the prosecution to produce him for trial within the statutory time, but such is not the case. Had he been desirous of a trial while in the penitentiary he might easily have secured appropriate orders from the court having jurisdiction for the purpose of being placed on trial, and it was his duty to do so. (Meadowcroft v. People, 163 Ill. 56.) The statute does not apply where the defendant is confined in the penitentiary for another offense. (State v. Brophy, 8 O. Dec. 698; Gillespie v. People, 176 Ill. 238; 56 L. R. A. 513 and note.)

As only a constitutional question can be reserved the statute we assume is in no way involved in this proceeding, and the only question that will be determined is whether or not the defendant will have had a speedy trial in view of our constitutional provision should he be now placed on trial upon the pending information. Counsel f...

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