By
Lewis, J.
The defendant is brought before this Court upon a writ of habeas corpus, and his release claimed by counsel upon the grounds: First, that he cannot have a speedy trial in the county where he was indicted, and where it is claimed he has the right to be tried, because no competent jury can be obtained there, and no change of venue can be had upon the motion of the prosecution; and second, that the order made by the Court postponing the trial indefinitely, operated as a release of the prisoner, and consequently the Sheriff has now no legal authority to hold him in custody.
[116]*116That all persons held on a criminal charge have the legal right to demand a speedy and impartial trial by jury, there can at this time be no doubt. The right was guaranteed to the English people by the Great Charter; it has been confirmed in subsequent bills of right; iterated and reiterated by the Courts, and defended and protected by the representatives of the people with jealous care and resolute courage. In this country the saipe right is generally guaranteed by the Constitutions of the respective States, or secured by appropriate legislative enactments. That the defendant may claim this right, there is no doubt. But what is to be understood by a speedy trial, is the embarrassing question now to be determined. It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. Pie must wait until a regular term of the Court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, whilst it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence or exertion from the Courts, or the representatives of the State; nor does it contemplate that the right of a speedy trial which it guaranteed to the prisoner shall operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals.
Section 582 of the Criminal Practice Act indicates what is here understood by a speedy trial. That section declares that “ if a defendant, indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next term of the Court at which the indictment is triable after the same is found, the Court shall order the indictment to be dismissed, unless good cause to the contrary be shown.”
The prisoner here certainly cannot complain that the Court below [117]*117has not endeavored, with the utmost diligence and good faith, to give him a trial, but having failed after repeated efforts to obtain a jury, and the Judge having expressed an opinion that a jury could not be secured, the defendant considers himself entitled to be released. But it is not shown that every possible means of impan-neling a jury had been exhausted, and that one could not possibly be obtained in the county. After having made all reasonable efforts to give the defendant a trial, and failing in it, I am inclined to believe that the Court below had the right to continue the cause until the next term, if at such term a trial could probably be had. This effort to give the defendant a trial was at the first term after the Court below had reacquired jurisdiction of the case by the disposition by this Court of the appeal, which had previously been taken in it. Section 318 of the Criminal Practice Act, as amended in 1867, (Laws of 1867, page 127) confers upon the Courts the right to continue the trial in a criminal ease upon a proper showing by affidavit. In a case of this kind an affidavit would be entirely unnecessary, if the Judge was satisfied that a jury could not be had at that term. I see no reason why, upon his own knowledge of the fact, he could not continue the case. If, upon affidavit of the prosecution, showing cause, the Judge can continue a case for a term, why may he not do so upon his own knowledge of the fact that a trial cannot be had at that particular term ? There appears to be no reason why he may not do so. If it were clear that a jury could not be had at the next term, a continuance would be useless, and the prisoner should perhaps be discharged. But it does not follow that because there was a failure at one term of Court to obtain a jury, that one could not be secured at the next term.
It is very clear that there were many persons in the comity qualified to act as jurors, whose attendance the Court was not able to secure at the last term, who, however, may be summoned for the next term. Hence, it is not by any means certain that a jury cannot be impanneled at the next term of the Court. I do not hesitate to say, that if at the next term the Court fails, after proper efforts to obtain a jury, that the defendant should be released. But it seems to me that he should not be discharged until every [118]*118effort has been exhausted to bring him to trial. That the State cannot have the case transferred to another county for trial, is evidently an omission in the law. It could not have been the intention to deprive it of that right, where a trial is rendered impossible in the proper county. A prisoner charged with a grave offense should, therefore, not be released upon the ground here taken, until all possible means of securing a jury are exhausted, and it is made perfectly certain that a trial cannot be had within a reasonable time in the proper county.
The order made by the Court below, postponing the trial, was not regular. But it follows, from what has been said, that the case could have been continued for the term. Such was, perhaps, the effect of the order made. A continuance for the tenn would have been more regular, and the order had better be so modified.
The prisoner is remanded to the custody of the Sheriff of Washoe County, to await the action of the District Court.
Beatty, 0. J.
I agree with my associate, Justice Lewis, in the conclusion that the prisoner should be remanded to the custody of the Sheriff of Washoe County. I also agree with him in most of his othér conclusions in this case. But I do not agree with him that the State is bound to procure a speedy trial for a prisoner who does not himself choose to take those steps necessary to procure such trial.
Where there is too much prejudice or feeling, against a person charged with crime, to get an impartial trial in the county where the crime is alleged to have been committed, all he has to do is to ask for a change of venue to another county, in order to get that speedy trial the Constitution guarantees. If in such case the prisoner refuses to ask for a change of venue, I see' no other way but to keep the case pending, until by change of population, the growing up of a new generation, or the wearing out of the memory of the act, an impartial trial can be had.
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By
Lewis, J.
The defendant is brought before this Court upon a writ of habeas corpus, and his release claimed by counsel upon the grounds: First, that he cannot have a speedy trial in the county where he was indicted, and where it is claimed he has the right to be tried, because no competent jury can be obtained there, and no change of venue can be had upon the motion of the prosecution; and second, that the order made by the Court postponing the trial indefinitely, operated as a release of the prisoner, and consequently the Sheriff has now no legal authority to hold him in custody.
[116]*116That all persons held on a criminal charge have the legal right to demand a speedy and impartial trial by jury, there can at this time be no doubt. The right was guaranteed to the English people by the Great Charter; it has been confirmed in subsequent bills of right; iterated and reiterated by the Courts, and defended and protected by the representatives of the people with jealous care and resolute courage. In this country the saipe right is generally guaranteed by the Constitutions of the respective States, or secured by appropriate legislative enactments. That the defendant may claim this right, there is no doubt. But what is to be understood by a speedy trial, is the embarrassing question now to be determined. It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. Pie must wait until a regular term of the Court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, whilst it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence or exertion from the Courts, or the representatives of the State; nor does it contemplate that the right of a speedy trial which it guaranteed to the prisoner shall operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals.
Section 582 of the Criminal Practice Act indicates what is here understood by a speedy trial. That section declares that “ if a defendant, indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next term of the Court at which the indictment is triable after the same is found, the Court shall order the indictment to be dismissed, unless good cause to the contrary be shown.”
The prisoner here certainly cannot complain that the Court below [117]*117has not endeavored, with the utmost diligence and good faith, to give him a trial, but having failed after repeated efforts to obtain a jury, and the Judge having expressed an opinion that a jury could not be secured, the defendant considers himself entitled to be released. But it is not shown that every possible means of impan-neling a jury had been exhausted, and that one could not possibly be obtained in the county. After having made all reasonable efforts to give the defendant a trial, and failing in it, I am inclined to believe that the Court below had the right to continue the cause until the next term, if at such term a trial could probably be had. This effort to give the defendant a trial was at the first term after the Court below had reacquired jurisdiction of the case by the disposition by this Court of the appeal, which had previously been taken in it. Section 318 of the Criminal Practice Act, as amended in 1867, (Laws of 1867, page 127) confers upon the Courts the right to continue the trial in a criminal ease upon a proper showing by affidavit. In a case of this kind an affidavit would be entirely unnecessary, if the Judge was satisfied that a jury could not be had at that term. I see no reason why, upon his own knowledge of the fact, he could not continue the case. If, upon affidavit of the prosecution, showing cause, the Judge can continue a case for a term, why may he not do so upon his own knowledge of the fact that a trial cannot be had at that particular term ? There appears to be no reason why he may not do so. If it were clear that a jury could not be had at the next term, a continuance would be useless, and the prisoner should perhaps be discharged. But it does not follow that because there was a failure at one term of Court to obtain a jury, that one could not be secured at the next term.
It is very clear that there were many persons in the comity qualified to act as jurors, whose attendance the Court was not able to secure at the last term, who, however, may be summoned for the next term. Hence, it is not by any means certain that a jury cannot be impanneled at the next term of the Court. I do not hesitate to say, that if at the next term the Court fails, after proper efforts to obtain a jury, that the defendant should be released. But it seems to me that he should not be discharged until every [118]*118effort has been exhausted to bring him to trial. That the State cannot have the case transferred to another county for trial, is evidently an omission in the law. It could not have been the intention to deprive it of that right, where a trial is rendered impossible in the proper county. A prisoner charged with a grave offense should, therefore, not be released upon the ground here taken, until all possible means of securing a jury are exhausted, and it is made perfectly certain that a trial cannot be had within a reasonable time in the proper county.
The order made by the Court below, postponing the trial, was not regular. But it follows, from what has been said, that the case could have been continued for the term. Such was, perhaps, the effect of the order made. A continuance for the tenn would have been more regular, and the order had better be so modified.
The prisoner is remanded to the custody of the Sheriff of Washoe County, to await the action of the District Court.
Beatty, 0. J.
I agree with my associate, Justice Lewis, in the conclusion that the prisoner should be remanded to the custody of the Sheriff of Washoe County. I also agree with him in most of his othér conclusions in this case. But I do not agree with him that the State is bound to procure a speedy trial for a prisoner who does not himself choose to take those steps necessary to procure such trial.
Where there is too much prejudice or feeling, against a person charged with crime, to get an impartial trial in the county where the crime is alleged to have been committed, all he has to do is to ask for a change of venue to another county, in order to get that speedy trial the Constitution guarantees. If in such case the prisoner refuses to ask for a change of venue, I see' no other way but to keep the case pending, until by change of population, the growing up of a new generation, or the wearing out of the memory of the act, an impartial trial can be had. Establish the contrary doctrine, and all a man has to do to escape punishment is to commit a crime so open and atrocious in its character as to convince every intelligent man in the country that he is unquestionably guilty and deserving punishment, and then he must be turned loose on society to commit other and more atrocious crimes.
[119]*119The clause in the Constitution which secures a speedy trial was intended to protect the innocent and not to encourage the vicious. Theoretically jurors can be disqualified by having formed an opinion in favor of the innocence of a prisoner, as - well as by having formed an opinion against him. But practically there is never any difficulty in getting a jury to try an innocent man, or one about whose innocence there is any reasonable doubt. Generally speaking, it is only where crimes have been committed under circumstances of peculiar atrocity, and the evidence is clear beyond a reasonable doubt that the community at large becomes so much excited, and the crime is so much discussed, as to induce the mass of the community to form opinions disqualifying them as jurors. The exceptions to this rule are very rare indeed.
It would only be on well settled authority, or the clearest necessity, that I would consent to the establishment of a rule to turn loose on society the worst class of criminals, on the sole ground that their crimes were so great, that the whole community in which they were committed were of the opinion that the accused deserved punishment.