State v. Werbin
| Citation | 345 S.W.2d 103 |
| Decision Date | 13 March 1961 |
| Docket Number | No. 48141,No. 1,48141,1 |
| Parties | STATE of Missourl, Respondent, v. Harry WERBIN, Appellant |
| Court | United States State Supreme Court of Missouri |
Keith Wilson, Jr., Independence, and Walter A. Raymond, Kansas City, for defendant-appellant.
John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., Jefferson City for respondent.
Upon trial by jury in the Circuit Court of Jackson County, at Independence, defendant was found guilty of manslaughter by the use of instruments upon the body of Janice Easterbrook, a pregnant woman, for the purpose of producing an abortion, in consequence of which said woman died. Section 559.100 RSMo 1949, V.A.M.S. 1 His punishment was assessed at imprisonment in the State Penitentiary for a term of two years. He has appealed from the judgment rendered in accordance with the verdict, contending that the court erred: (1) in denying his motion for discharge for failure of the State to bring his case to trial before the end of the fourth term of court as provided in Sections 545.900, 545.910 and 545.920; (2) in failing to direct a verdict of acquittal or to sustain his motion for new trial for the reason there was no substantial evidence that Janice Easterbrook died as a result of abortion performed upon her by instruments; and (3) in failing to give an instruction 'on the defense of accident as a part of the law of the case * * *.'
On the day the case was called for trial, October 12, 1959, defendant filed and presented to the court an 'Application for Discharge', predicated upon Section 545.900, which provides that:
'If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term.'
Due, however, to the fact that in Jackson County there are 'more than two regular terms of the court having jurisdiction of criminal cases,' it is conceded that Section 545.900 is modified by the provisions of Section 545.920, which, insofar as pertinent here, reads:
'In all cities or counties in this state in which there shall be more than two regular terms of the court having jurisdiction of criminal cases, * * * under the circumstances mentioned in section 545.900, the defendant shall not be entitled to be discharged until the end of the fourth term after the indictment was found, * * *.'
Defendant relies strongly upon State v. Wear, 145 Mo. 162, 46 S.W. 1099, and State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189, in support of his claim of error in the denial of his application. In the Wear case it was stated, 46 S.W. loc. Cit. 1105, that although the time limitations fixed by the statute 'may be retarded in consequence of various circumstances occurring which the statute mentions as hindering causes,' yet, 'when requisite time has elapsed, and no showing is made by the state for further delay, the defendant is entitled as of right to a judgment of discharge * * *.' In that case, however, the court had under consideration defendant's plea in bar, filed in the trial court prior to trial of the criminal action of which he had been convicted. The plea in bar was based upon dismissal of a prior indictment for the same offense under the provision of the statutes here invoked by this defendant. In ruling that the plea in bar should have been sustained by the trial court, the supreme court observed that every presumption should be indulged in favor of the validity of the former judgment of dismissal of the first indictment. Accordingly, upon review of the record, each of the first three continuances shown in the record was treated by the court as having been taken at the instance of the State, although the record did not expressly so show, following which the court stated its conclusion, 46 S.W. loc. cit. 1109: 'It thus appears that the case was presumably continued at least three times by the state before the term at which the judgment was rendered; and the record showed affirmatively that it was continued on application of the state at that term, making in all four continuances by the state after indictment found, while only three were necessary in order to entitle defendant to his discharge.' We have no such situation in the instant case.
In the Wurdeman case, supra, 246 S.W. loc. cit. 194, the court said of the statute: . 2 In the instant case, the pleadings do not admit of any finding that there was time to try the case at any of the terms to which defendant points as one of the 'four terms' entitling him to discharge under the statute.
The reason for these statutes is that if the defendant is ready and willing to go to trial he is not to be deprived of his constitutional right to a speedy public trial on account of the laches of the State. On the other hand, of course, if defendant seeks, consents to or connives at delay of the case or if, in addition to the causes mentioned in the statute, there be other equally substantial reasons, for which the State is in no manner responsible, for delay in the trial, such as illness of the judge or inability of the jury to agree, or other nonculpabel similar incidents, defendant ordinarily may not successfully invoke the bar of the statute. State v. Nelson, Mo. Sup., 279 S.W. 401, 402-403; State v. Hicks, 353 Mo. 950, 185 S.W.2d 650, 651. In the latter case, the circumstances under which certain statements were made in State ex rel. Stevens v. Wurdeman, supra, were noted and distinguished from facts such as are here presented. See also Osborne v. Owsley, Mo.App., 257 S.W.2d 691, 692-693; Osborne v. Owsley, Mo.App., 259 S.W.2d 129, 131-132.
Defendant's contention must be determined from the record entries made during the terms of court intervening between the return of the indictment and the trial and the reasonable inferences, if any, to be drawn from such entries. There is no other evidence from which the merits of the motion may be otherwise determined. These entries show:
May Term, 1958
The indictment was returned on September 5, 1958, during the May 1958 Term. On that day defendant was arraigned, pleaded not guilty, was released on bail, and the cause was set for trial on September 8, 1958, it being the first day of the September Term. Concededly, the May Term, being the return term of the indictment, is not to be counted in computing court terms coming within the meaning of the statute.
On October 9, 1958, during the September 1958 Term, the cause at the request of defendant was continued to the November Term. Concededly, the September Term is not to be counted.
On November 10, 1958, during the November 1958 Term, the cause was reset for trial on December 8, 1958. On the latter date (the 23rd day of the November 1958 Term) the record states: '* * * it is ordered by the court that the following causes be transferred to the Criminal Division 'B' * * * and set for trial on the 15th day of December, 1958, among them, to wit:
C-28803--State of Missouri vs. Harry Werbin, Manslaughter by Abortion.'
There is no evidence in the record that the court acted at the instance of either of the parties in continuing this group of cases. We cannot assume, however, that it acted arbitrarily. To the contrary, we believe it fairly inferable that the continuances (which were ordered near the end of the term) were necessitated by 'want of time to try' the cases during the remainder of the November Term.
On March 4, 1959 (the 79th day of the December 1958 Term), the record shows: '* * * on this day it is ordered by the court that the following numbered and entered causes be continued for the term and set for trial on the 9th day of March, 1959, the same being the 1st day of the March (1959) Term and transferred to Division 11-A, among them, to wit:
C-28803--State of Missouri vs. Harry Werbin, Manslaughter by Abortion.'
Again there is no evidence that the court acted at the instance of either of the parties in continuing this group of cases. We cannot assume, however, that it acted arbitrarily. To the contrary, we believe it fairly inferable that these cases were continued (near the end of the term) for 'want of time to try' them during the remainder of the December Term.
On March 9, 1959 (during the March 1959 Term) the cause was reset for April 6, 1959; on April 6, 1959 (during the same term), the cause was reset for April 13 1959. On April 15, 1959 (the 33rd day of the same term) defendant filed a motion for continuance, which the court overruled. On the same day, defendant sought and was granted a 'change of venue' 3 and the cause was transferred to Criminal Division 'B'. It thus clearly appears that, in seeking a continuance of the case at the March 1959 Term and in taking a change of venue when the continuance was not granted, defendant is in no...
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...as opposed to performing such an operation as a necessary measure to preserve her life, and from which acts she died. See State v. Werbin, Mo., 345 S.W.2d 103, 107--110(4--5). Appellant tacitly concedes the sufficiency of evidence to sustain conviction, but contends that, even so, he should......
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...P.2d 377 (1959); State v. Doucette, 147 Conn. 95, 157 A.2d 487 (1959); Martel v. State, 221 Md. 294, 157 A.2d 437 (1960); State v. Werbin, 345 S.W.2d 103 (Mo.1961); see also Annot., 57 A.L.R.2d 302, 321, and supplement thereto in A.L.R.2d Later Case Service (1967; Moreover, the entry of a v......
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...shows that the appellant sought or by his own conduct caused the continuances and of course is in no position to now complain. State v. Werbin, Mo., 345 S.W.2d 103; State v. Nelson, Mo., 279 S.W. Another matter not set forth in his motion for a new trial is the briefed assertion that the co......
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Lillibridge v. State, KCD
...the amended informations were filed is not to be considered in determining the number of terms under the above statutes. State v. Werbin, Mo.Sup., 345 S.W.2d 103. The December term also could not be counted against the state because during that term Judge Riley disqualified himself for the ......