Von Feldstein v. State

• Decision Date: 07 July 1915
• Docket Number: Criminal 380
• Citation: 17 Ariz. 245,150 P. 235
• Parties: In the Matter of the Application of COUNT VON FELDSTEIN for a Writ of Habeas Corpus. COUNT VON FELDSTEIN, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

150 P. 235

17 Ariz. 245

In the Matter of the Application of COUNT VON FELDSTEIN for a Writ of Habeas Corpus. COUNT VON FELDSTEIN, Appellant, v. STATE, Respondent

Criminal No. 380

Supreme Court of Arizona

July 7, 1915

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Judgment reversed and case remanded, with directions.

Mr. W A. Carter and Mr. A. D. Leyhe, for Appellant.

Mr Wiley E. Jones, Attorney General, and Mr. Leslie C. Hardy and Mr. George W. Harben, Assistant Attorneys General, for the State.

OPINION

ROSS, C. J.

This is an appeal from a judgment refusing to discharge the appellant from custody upon his application for a writ of habeas corpus, and from the judgment of conviction.

The appellant and one Anna Engel were informed against on a felony charge. The information was filed in the superior court on the eight day of January, 1915. On the 20th of January, upon their arraignment, they both pleaded not guilty, and the case was set for trial February 3d. The record shows that the accused were both represented by the same counsel at the time of their arraignment and until after the order granting separate trials, January 20th. On February 18th, the appellant being present in court, represented by counsel, the trial of his case was set for March 11th. On March 5th the order setting the case for trial was vacated and the case was reset for trial March 22d. On March 17th the appellant appeared in court in person, and by his attorneys Leyhe & Carter, whereupon his plea of not guilty was withdrawn, and he was permitted to file a demurrer to the information against him be dismissed, and that he be discharged from custody on the ground that more than 60 days had elapsed since the information was filed; this motion was denied by the court; thereupon the appellant applied for a writ of habeas corpus, alleging: "That although more than 60 days have elapsed since the filing of said information above set forth, this appellant has never been brought to trial upon the same; that the said delay has in no manner and in no respect been caused by or through this applicant or on his behalf, or by or through his consent; that under and by virtue of the provisions of section No. 1274, title No. 16 of the Penal Code of the state of Arizona this applicant" is entitled to be discharged and dismissed from custody. A hearing upon the application for a writ of habeas corpus was had, and the writ denied. The evidence at the hearing disclosed that the appellant was without any attorney until the 5th or 6th day of March, although the county attorney and the court were laboring under the impression that the same attorneys who represented Engel had been retained by the appellant. On the hearing the county attorney made no showing as to why the case had not been tried, and, in response to the remark by a witness, "I presume the record would show whether there was a continuance at the attorney's request," answered, "It just shows that it faded away." The expression of the county attorney is very expressive of the situation as we get it from the record. On the 5th of April, after the court had denied the application for a writ of habeas corpus, the county attorney, announcing ready for trial, the court set the case for trial immediately upon the termination of the case then on trial. April 9th, against the protest of appellant, the case was tried, and the appellant convicted.

There are two separate appeals before us, one from the order refusing the application for a writ of habeas corpus, and the other from the judgment of conviction.

A careful examination of the record fails to show any effort upon the part of the appellant to bring his case to trial. It also is equally barren of any consent upon his part to continuances or delays. The different settings and resettings of the case, as they appear in the minutes, seem to have been made by the court upon its own motion, or upon the motion of the county attorney, but without any protest or consent, so far as the minutes are concerned, on the part of the appellant.

In our Constitution, section 24, article 2, is found this provision:

"In criminal prosecutions, the accused shall have the right . . . to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed. . . ."

At the time of the adoption of this provision, paragraph 1274 of the Penal Code was in force, and had been in force as the law of the territory of Arizona for a great many years. Its provisions, defining the time in which trial must be had, unless good cause to the contrary be shown, or the postponement be upon the application of the defendant, were before the constitutional convention, and considered by it. After statehood this paragraph was carried forward into the Criminal Code. Thus we have an expression, both in the fundamental law and the statutory law, of what shall be considered a reasonable time within which a defendant charged with crime shall be tried. Paragraph 1274 reads as follows:

"The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:

"(1) Where a person has been held to answer for a public offense, if an indictment or information is not found within thirty days.

"(2) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment or the filing of the information."

It is quite clear that from the eighth day of January, the date of filing the information, to the ninth day of April, the date on which appellant's trial was begun, is far in excess of the 60 days fixed by the statute. There is nothing in the record showing that the trial of the case was postponed upon the application or at the instance of the appellant. The only question, then, for our determination is as to whether, from the whole record, the state has shown good cause for not bringing the appellant to trial within 60 days after January 8th, the date of the filing of the information. It seems to us that if the trial had been postponed upon the consent or at the request of appellant, it would have been an easy matter for the state to have made such showing. It may be, and we are rather inclined to that idea, that the postponements of the trial were with the tacit consent of the appellant, and it may be that the postponements were for his benefit pending his efforts to secure an attorney to defend him, but a showing on the part of the state could have been so easily made that we do not feel justified in adopting that view when the state has failed and neglected to support it by any evidence whatever. There is no showing that the court was engaged in other business that prevented the trial of appellant within the 60-day limit prescribed by law.

[17 Ariz. 249] Paragraph 1274, supra, is identical with section 1382 of the Penal Code of California. The supreme court of that state has had occasion, in several cases, to construe section 1382. In re Begerow, 133 Cal. 349, 85 Am. St. Rep. 178, 56 L.R.A. 513, 65 P. 828, the court, quoting from People v. Morino, Cal. 515, 24 P. 892, said:

"'a party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important, or to prolong his imprisonment, without such trial, beyond the time provided by law. The statute is imperative. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed. Here no cause for delay was shown. It was enough for the defendant to show that the time fixed...