State v. Shaw

• Decision Date: 21 June 1949
• Docket Number: 7497
• Citation: 69 Idaho 365,207 P.2d 540
• Parties: STATE v. SHAW
• Court: Idaho Supreme Court

207 P.2d 540

69 Idaho 365

STATE v. SHAW

No. 7497

Supreme Court of Idaho

June 21, 1949

Appeal from District Court, Tenth Judicial District, Nez Perce County; James W. Porter, Judge.

Affirmed.

Paul C Keeton, Lewiston, for appellant.

The Court should have sustained defendant's Motion to Dismiss the action on the ground that a defendant whose trial has not been postponed upon his application and who is not brought to trial at the next term of court in which the indictment is tryable after it is found has a right to have the action dismissed. Constitution of the State of Idaho, Paragraph 18 Section 19-3401, Idaho Code Annotated; Harris v Municipal Court, 209 Cal. 55, 285 P. 699; Davison et al v. Garfield, 22 Iowa 424, 265 N.W. 645; State v Carrillo, 41 Ariz. 170, 16 P.2d 965; Brummitt v. Higgins, 80 Okl.Cr. 183, 157 P.2d 922.

The Court should have sustained defendant's objection to the Sheriff of Nez Perce County serving the special venire for jurymen as the sheriff and all his deputies were endorsed on the Information as witnesses and the Prosecuting Attorney, over objections of the defendant and after defendant had served the sheriff with a subpoena, moved to strike the name of the sheriff from the Information so that he could summon the special venire. Sections 19-1910, 19-1914, 19-1913, Idaho Code Annotated; 35 C.J. 276, 277, 278; 16 R.C.L. 233; State v. Barber, 13 Idaho 65, 88 P. 418; State v. Jordan, 19 Idaho 192, 112 P. 1049; State v. Knutson, 47 Idaho 281, 274 P. 108.

Robert E. Smylie, Atty. Gen., John R. Smead, Asst. Atty. Gen., both of Boise, Earle W. Morgan, Pros. Atty., Lewiston, for respondent.

When the same defendant appears ready for trial, preliminaries are carried on, then a jury empaneled and sworn, the information read and the plea of not guilty announced, all without objection, the trial has occurred in part, the defendant is in jeopardy, and any right of dismissal has been waived. The motion for dismissal comes too late. Silcox v. Lang, 78 Cal. 118, 20 P. 297; People v. Hawkins, 127 Cal. 372, 59 P. 697; Cooley's Const.Lim. (7 2d) p. 467.

An assignment of insufficiency of the evidence to support the verdict and judgment should specify the particulars of the insufficiency alleged. State v. Moodie, 35 Idaho 574, 576, 207 P. 1073; State v. Maguire, 31 Idaho 24, 29, 169 P. 175; State v. Johnson, 39 Idaho 440, 442, 227 P. 1052; State v. Poulos, 36 Idaho 453, 212 P. 120.

Holden, Chief Justice. Givens and Taylor, JJ., and Featherstone and Sutphen, District Judges, concur.

OPINION

Holden, Chief Justice.

Ray Shaw was charged with and convicted of the crime of involuntary manslaughter and he appeals.

Appellant contends the trial court erred in refusing to grant his motion to dismiss the action "on the ground that a defendant whose trial has not been postponed upon his application and who is not brought to trial at the next term of court in which the indictment is triable after it is found has a right to have the action dismissed."

The record shows a criminal complaint was filed in the justice court of the first precinct of Nez Perce county December 31, 1947, charging appellant with the crime of involuntary manslaughter; that appellant was held to answer said charge in the District Court of the Tenth Judicial District of the State of Idaho in and for Nez Perce county; that on the same day an information was filed in said district court charging appellant with the commission of the crime of involuntary manslaughter; that appellant's trial began June 16, 1948, and that on the 18th day of June, 1948, the verdict of the jury was filed finding appellant guilty of manslaughter as charged in the information.

In support of his contention the trial court erred in refusing to dismiss the action, appellant cites and relies upon article 1, section 18, of the constitution of the state of Idaho; sec. 19-3501, Idaho Code; In re Shirley Jay, 10 Idaho 540, 79 P. 202, and In re Rash, 64 Idaho 521, 134 P.2d 420.

Section 18, supra, provides: "[Sec. 18] Justice to be freely and speedily administered. -- Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."

And sec. 19-3501, Idaho Code, provides:

"[Sec. 19-3501] When action may be dismissed. -- The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:

"1. When a person has been held to answer for an offense, if an indictment is not found against him at the next term of the court at which he is held to answer.

"2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial at the next term of the court in which the indictment is triable, after it is found."

In Re Shirley Jay, supra, relied upon by appellant, it appears it was admitted that no indictment was found or information filed at the next term of court at which Jay was held to answer. The reasons given for failure to comply with the above quoted first subdivision, in substance, were loss of papers and press of business in the office of the county attorney. This court, of course, held the showing was not sufficient and ordered that Jay be discharged. But there is such a substantial difference in the facts on the question of "good cause", in the case at bar, and the facts on the same question in Re Shirley Jay, supra, that the Jay case cannot be said to be in point on that question.

The second subdivision of sec. 19-3501, supra, was before this court for consideration in Re Rash, supra. In that case it appears an information charging bigamy was filed against Rash November 24, 1941; that thereafter, at a trial upon said charge, in December, 1941, the jury disagreed. January 5, 1942, the case was continued at defendant's request because of the absence of his, and inability to secure, necessary witnesses; and that September 19, 1942, the case was continued at the request of the prosecution, concerning which the following statement was made by the trial court: "That this court takes judicial notice of the fact that the United States is at war and that it would be virtually impossible to obtain witnesses in said cause at the present time who must come from a considerable distance, as they are employed in defense projects where their presence is absolutely essential; and that because of the conditions existing in Latah County, Idaho, due to the shortage of labor, it would be virtually impossible to obtain a jury at the present time without working a great hardship upon everyone that would be called to the jury duty at this time and because it does not appear that the defendant would in any [way] be prejudiced by said continuance."

It further appears that thereafter the trial court denied Rash's motion to dismiss made September 21, 1942. It also appears Rash sought dismissal of the action by an original application filed in this court for habeas corpus contending he should have been tried either at the term April 6, 1942, or September 19, 1942. In passing on the Rash contention, this court said [64 Idaho 521, 134 P.2d 421]: "The proviso in section 19-3401 [now sec. 19-3501, Idaho Code] that 'The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed', vests discretion in the court both in the initial determination of whether good cause is shown and in this court on the application for habeas corpus [citing cases]." (Emphasis added.)

Continuing this court further said: "The reasons given by the learned trial judge for continuing the cause are, however, not so lacking in the elements of 'good' cause under the statute, though of doubtful justification [citing cases], as to demand the petitioner's discharge, especially since his incarceration is only nominal [citing a Washington case]. He is, however, entitled to be tried."

Concluding the court said: "Petitioner, therefore, is not discharged from custody but remanded with directions to the trial court to impanel an open or special venire, if necessary, and put the defendant to trial upon the charge in the information, within the next thirty days compliant with section 7-109, I.C.A. [now sec. 10-109, Idaho Code]."

In so far as section 13 of article 1, of the California constitution, and section 18 of article 1 of our constitution, guaranteeing a speedy trial, are concerned, they are substantially alike and it may be further stated that in so far as the right of a defendant to have a prosecution against him dismissed for failure to bring the same to trial, the provisions of the California statute, Penal Code, sec. 1382, and sec. 19-3501, supra, are also substantially alike.

In People v. Scott, 74 Cal.App.2d 782, 169 P.2d 970, the California court had before it for consideration and determination the question as to whether the right to a speedy trial guaranteed by sec. 13, supra, of the California constitution, and the provisions of subd. 2 of sec. 1382, of the Penal Code of that state, could be waived, in which case it held an application for relief must be made in the first instance, in the court where the prosecution is pending, and if the application is not therein made before the trial is begun, the right is waived.

Here, the record discloses that at the threshold of the trial the court inquired if there were any preliminary motions to which the prosecuting attorney replied.

"There are your Honor. The defense has one and the State has one. Mr. Keeton, the attorney for the defendant has suggested that we hold up his, subject to the Court's approval, until after the jury is empaneled and sworn and if that could be...