State v. Test

• Decision Date: 22 November 1922
• Docket Number: 5163.
• Citation: 211 P. 217,65 Mont. 134
• Parties: STATE v. TEST.
• Court: Montana Supreme Court

211 P. 217

65 Mont. 134

STATE v. TEST.

No. 5163.

Supreme Court of Montana

November 22, 1922

Commissioner's Opinion.

Appeal from District Court, Fergus County; Rudolph von Tobel, Judge.

L. B Test was convicted of violating the intoxicating liquor law and he appeals. Affirmed.

W. T McKeown, of Lewistown, for appellant.

W. D Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

BORTON C.

This is an appeal from a judgment of conviction for a violation of the intoxicating liquor law. But one question is presented by this appeal, and it is this: Did the court err in overruling the motion of the defendant for a dismissal of the action for the reason that the defendant had not been brought on for trial within six months after the information had been filed?

It appears from the record that the information in this case was filed the 1st day of October, 1921; that the defendant appeared in court October 20, 1921, for arraignment and entered a plea of not guilty. Upon the 22d day of March, 1922, his case was set for trial for April 20, 1922. Upon April 20, 1922, the record discloses that the county attorney and defendant and his counsel were in court; that such proceedings were had that a jury was impaneled, and that in the impaneling of the jury the state waived all peremptory challenges, and the defendant exercised two peremptory challenges and waived the remainder. It further appears that subsequent to the impaneling of the jury the county attorney moved to indorse the name of a witness upon the information, and the record shows that this was done by stipulation. Just before the presentation of the testimony, the defendant objected "to any evidence being submitted and moves for a dismissal for the reason that this action had not been tried within the six months' period after the information had been filed." After arguments by counsel the motion was denied.

The appellant seeks to avail himself of the constitutional guaranty of a speedy trial contained in section 16, art. 3, of the Constitution, by presenting his motion, under section 12223, Rev. Codes 1921, which is as follows:

"The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: * * * (2) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six months after the finding of the indictment, or filing of the information."

Mr. Justice Holloway, in State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann. Cas. 398, in discussing a somewhat similar question to the one involved here, makes use of the following language in developing that some of these rights contained in section 16, Art. 3, of the Constitution, are personal to the defendant and may be waived, and some are of interest likewise to the state, as well as the defendant, and cannot be waived:

"In other words, the rights guaranteed to one accused of crime fall naturally into two classes: (a) Those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be."

The right to have a speedy trial is one peculiar to the accused alone, and is therefore one that may be waived.

Whether the defendant's rights were infringed, therefore depends upon whether or not he waived his right to a speedy trial by failing to object...