State v. Van Waters

• Citation: 78 P. 897,36 Wash. 358
• Parties: STATE v. VAN WATERS.
• Decision Date: 22 December 1904
• Court: United States State Supreme Court of Washington

78 P. 897

36 Wash. 358

STATE v. VAN WATERS.

Supreme Court of Washington

December 22, 1904

Appeal from Superior Court, King County; W. R. Bell, Judge.

Frank Van Waters was convicted of rape, and he appeals. Affirmed.

Winsor & Hadley, for appellant.

W. T Scott and Hermon W. Craven, for the State.

FULLERTON C.J.

The appellant was tried upon an information charging him with the crime of rape committed upon the person of a female child under the age of consent, found guilty of such crime, and sentenced to imprisonment for a term of 25 years in the state penitentiary.

From the record it appears that the appellant was held to answer for the crime charged by a committing magistrate on the 16th day of June, 1903, that an information was filed against him on the 15th day of July, 1903, that he pleaded not guilty to the information on August 29, 1903, and that he was brought to trial on September 16, 1903. The record does not make it appear at what time he was arraigned, nor does it show when the cause was set for trial, nor the proceedings had at that time. At the time the plea was taken, the appellant filed a written motion asking for a dismissal of the proceedings against him on the grounds (1) that he was not brought to trial within 60 days after the information was filed against him; and (2) because he had not been arraigned until more than 60 days after his arrest; and (3) because he had been confined in jail more than 60 days without trial. This motion the court overruled. At the trial, after the jury had been selected and sworn, the motion was renewed, although in a little different from from the written motion; the appellant claiming that he had not been arraigned in time to fairly prepare for trial and be tried within 60 days after the information had been filed against him. This motion was also overruled, and these rulings constitute the first error assigned.

The Code (section 6910, Ballinger's) provides that when a person is held to answer by a committing magistrate, if no indictment or information be filed against him within 30 days, the court must order the prosecution dismissed, unless good cause to the contrary be shown. It also provides (section 6884) that he must be arraigned after the filing of the indictment or information, but no time is fixed within which such arraignment must take place. By section 6911 it is provided that if the defendant, whose trial is not postponed on his own application, be not brought to trial within 60 days after the indictment or information is filed, the proceedings against him must be dismissed, unless good cause to the contrary be shown. A comparison of the dates above given will show that 29 days elapsed between the time the defendant was held to answer and the time the information was filed against him, that he pleaded to the information on the forty-fifth day after it was filed, and was brought to trial on the sixty-third day thereafter.

The appellant first urges that he was entitled to a dismissal on his motion, both under the terms of the statute and the general rules governing the practice in like cases, but we think the record shows no error in the court's rulings in that regard. The only ground tenable for dismissing the prosecution at the time the written motion was filed was that there had been a delay in the arraignment of the appellant for such a length of time that he was unable to prepare for trial within 60 days from the time the information was filed, and was thereby denied the benefit of the statutory provision granting him that right. But there is not sufficient in the record to enable us to review these orders in this respect. As we have stated, the record does not show at what time the appellant was arraigned, and this court cannot presume that it was delayed beyond a reasonable time or that no sufficient cause appeared for such delay. To make a claim of error of this kind reviewable in this court the appellant must bring up enough of the record to show what was before the trial court when his motion was denied. To show that the information was filed on a certain day, and that he pleaded on another and a later day, is not enough. It may be that a sufficient cause intervened to warrant the delay, and it will be so presumed unless the contrary appears. In matters in which the trial court is vested with discretion, error is never presumed, but, to be available must appear on the face of the record.

The same conclusion must follow the ruling on the motion made after the trial had been entered upon. True, it appeared that the trial was commenced more than 60 days after the information had been filed. But the statute does not make this an absolute ground for dismissal; it requires a dismissal only where good cause to the contrary is not shown. The question of what constitutes good cause is one primarily for the discretion of the trial court, to be reviewed here only in cases of abuse. To so review such an order this court must have the whole record. A showing that there was a delay beyond the statutory period is not sufficient; it must appear that no sufficient cause for the delay was shown in the trial court. As the record here fails to show the order of the court setting the cause for trial or the proceedings had at that time, it must be presumed that the order was regular, and was made upon sufficient...