State v. Stewart
| Decision Date | 04 May 1964 |
| Docket Number | No. 9258,9258 |
| Citation | 87 Idaho 210,392 P.2d 180 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Fred STEWART, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Vernon K. Smith and Orvil D. Atkinson, Boise, for appellant.
Allan G. Shepard, Atty. Gen., and Richard E. Weston, Asst. Atty. Gen., Boise, C. Robert Yost, Pros. Atty., Canyou County, Caldwell, for respondent.
Appellant questions the legality of his conviction of a felony after having been charged with, and held to answer a second time in the district court, for the same offense.
On February 15, 1961, a complaint, duly filed, charged appellant (defendant) with first degree burglary allegedly committed on or about that same date. After several continuances, a preliminary hearing was held April 28, 1961, before a magistrate in Canyon County. Appellant thereupon was held to answer in the district court to such charge, and an information so charging him was filed June 20, 1961.
September 1, 1961, appellant petitioned for writ of habeas corpus, and a writ was issued. He contended, (1) that the evidence introduced at the preliminary hearing failed to show probable cause for holding him to answer to a charge of first degree burglary and, (2) that the transcript of the preliminary hearing was not signed and certified by the committing magistrate, as required when the person, transcribing and certifying the proceedings as true and correct, is not the county stenographer. I.C. § 19-812; cf. State v. Rutten, 73 Idaho 25, 245, P.2d 778 (1952); State v. Carlson, 23 Idaho 545, 130 P. 463 (1913). September 12, 1961, the writ was made permanent on the grounds that (1) the transcript of the evidence taken at the preliminary hearing had not been certified by the committing magistrate and (2) the proceedings 'were fatally defective for the reason that no order was made in accordance with the statutes of the State of Idaho finding that a crime had been committed and that there was probable cause to believe that said petitioner [appellant] committed such crime'; and ordered that appellant be released from custody.
After the district court decided to grant the writ, the following series of events shown by the minutes of the court of September 12, 1961, admitted in evidence, transpired:
'The Court further ordered the record will show that * * * the Writ is made permanent and that the Motion for Order Quashing Writ is denied and that the defendant [appellant] must be released from custody * * *.
'The Prosecuting Attorney then moved the Court for an Order to send this defendant back for another preliminary hearing on the same charge.
'The Court then ordered that the defendant will remain in custody until arguments can be heard on that Motion.
'Court recessed at 11:30 a. m.
In compliance with the district court's order appellant was released from custody and subsequently he departed from the state of Idaho.
On October 4, 1961, a new complaint was duly filed charging appellant with the same offense he was alleged to have committed on February 25, 1961. Appellant was arrested in Las Vegas, Nevada, on a fugitive warrant and, pursuant to extradition, was returned to the state of Idaho an February 4, 1962, by the sheriff and prosecuting attorney of Canyon County. February 14, 1962, a preliminary hearing was held before a magistrate in Canyon County and appellant was held to answer in the district court for the crime of first degree burglary allegedly committed February 25, 1961. A second information charging appellant with such offense was filed April 12, 1962.
April 13, 1962, appellant filed a petition for writ of habeas corpus alleging, among other things, that he was denied the right to a speedy trial in contravention of Idaho Const. Art. I, § 13. After hearing the motion, the district court denied the petition. April 26, 1962, appellant moved to dismiss the information, again contending that his constitutional right to a speedy trial had been disregarded. After denial of that motion, appellant was arraigned and plead not guilty to the charge of first degree burglary.
On September 5, 1962, after trial, a jury found appellant guilty of the charge of first degree burglary. September 16, 1962, appellant was sentenced to an indeterminate term of penitentiary servitude.
Appellant, by assignments of error, contends that the district court erred in denying his motion to dismiss filed April 26, 1962, based upon alleged denial of a speedy trial; also, that he was, at that time, illegally before the district court, since his return to the state of Idaho from the state of Nevada was in violation of his rights to due process of law. This contention does not appear in the motion to dismiss and is before us for the first time on appeal.
As to the first assignment of error, appellant's argument, in effect, is that the concerted action of the prosecuting attorney and the district court at the first habeas corpus proceeding on September 12, 1961, constituted an arbitrary and unreasonable delay in the prosecution of the state's case and should have properly resulted in a dismissal of the charge filed against him.
Appellant argues that the prosecuting attorney 'abandoned the prosecution,' when he chose to withdraw his motion to have appellant remanded for the purpose of holding a new preliminary hearing, such withdrawal having taken place after the district court informed the parties that an order would be issued making the writ of habeas corpus permanent.
In support of his argument, appellant cites Application of Cameron, 97 Okl.Cr. 81, 258 P.2d 208 (1953), a decision which is readily distinguishable on its facts. While the Cameron case stands for the proposition that a criminal charge should be dismissed when there is an unreasonable and arbitrary delay in prosecution, the delay involved therein extended over a period of some 12 years, during which time the petitioner was within the jurisdiction of the state of Oklahoma and available for trial. Such is not the situation in the case at bar.
Appellant further argues that the prosecuting attorney and the district court were remiss in failing to comply with the provisions of I.C. §§ 19-4216 and 19-4217, as directly applicable to the situation posed by the habeas corpus proceeding on September 12, 1961. I.C. § 19-4216 provides that if 'any person * * * is in custody of any officer on any criminal charge by virtue of any warrant of commitment of a probate judge or justice of the peace, such person must not be discharged on the ground of any mere...
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