State v. Lester

• Court: Washington Supreme Court
• Writing for the Court: FULLERTON, J.
• Citation: State v. Lester, 161 Wash. 227, 296 P. 549 (Wash. 1931)
• Decision Date: 09 March 1931
• Docket Number: 22774.
• Parties: STATE v. LESTER.

296 P. 549

161 Wash. 227

STATE v. LESTER.

No. 22774.

Supreme Court of Washington

March 9, 1931

Department 2.

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell Judge.

Prosecution by the State against David Lester. From a judgment granting a motion to dismiss the information, the State appeals.

Affirmed.

TOLMAN C.J., dissenting.

Austin M. Wade, of Aberdeen, for the State.

FULLERTON J.

On April 28, 1930, the prosecuting attorney of Grays Harbor county filed an information in the superior court of that county, charging the respondent, Lester, with the commission of a crime. On the same day a warrant was issued for his arrest, and was placed in the hands of the sheriff of the county for service. The sheriff, on July 19, 1930, made return to the effect that he had arrested the respondent in Grays Harbor county on the preceding day, and that he then held him in his custody to await the order of the court.

The cause was brought on for hearing before the court on July 23 1930, at which time the respondent moved to dismiss the information because he was not brought to trial within sixty days after the information was filed. The trial court granted the motion, and the state appeals.

The statute governing the question involved is found at section 2312 of Remington's Compiled Statutes, and reads as follows:

'If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown.'

The trial court gave to the statute a literal interpretation; holding that the filing of the information fixed the time from which the sixty-day period provided by the statute began to run, and that, if a defendant against whom an information was filed was not brought to trial within sixty days after such filing, no good cause to the contrary being shown, he was entitled to have the information dismissed.

The state's learned counsel takes exception to the court's interpretation of the statute; contending that the sixty-day period fixed by the statute begins to run only from the time the defendant is taken into custody, or has been in some other manner subjected to the orders of the court.

In our opinion, the court correctly interpreted the statute. Its language is plain and unequivocal, and will hardly permit of any other interpretation than that given to it by the trial court. The argument that such an interpretation can, in certain instances, amount to a denial of a trial altogether, we cannot concede is well founded. The statute applies to delays on the part of the state only. If the defendant by his own act causes the delay, it is good cause for denying a dismissal. If, for illustration, he conceals himself for the purpose of avoiding arrest, becomes a fugitive from justice, fails to appear after arrest according to the terms of his recognizance or the order of the court, asks for and is granted time in which to plead, moves for and is granted or consents to a continuance, or is the active party in the many other acts which delay a trial, he cannot ask for a dismissal of the charge on the statutory ground. Delays of this sort are all good causes for denying a motion. The inquiry is always: Was the delay caused wholly by the act of the state, or was it caused wholly by the act of the defendant, or by some act to which he consented. In the first of the instances, the defendant is entitled to a dismissal as a matter of right. In the others, he is not.

It is true this court has held that the right to dismiss for this cause is waived if the application is not timely made; and we have held that it is not timely made if made after the cause is called for trial, or after the trial has been entered upon. State v. Seright, 48 Wash. 307, 93 P. 521; State v. Lorenzy, 59 Wash. 308, 109 P. 1064, Ann. Cas. 1912B, 153; State v. Alexander, 65 Wash. 488, 118 P. 645; State v. Garland, 65 Wash. 666, 118 P. 907; State v. Miller, 72 Wash. 154, 129 P. 1100. But the situations presented in these cases are not here present. In the case before us the defendant moved when the first opportunity to do so presented itself, and not to grant it in such a situation would be to annul the statute.

The trial court held that the burden was on the state to show that good cause existed for failing to bring the defendant to trial within the sixty-day period. And here again the state's attorney disagrees with the court. He contends that the burden was on the defendant to make the showing. His argument is that it is presumed that public officers perform their duties, and that any one asserting to the contrary has the burden of showing that the duty was not performed....