FURMAN, P. J.
(after stating the facts as above). The jurisdiction of this court to entertain mandamus proceedings in such cases as this was passed upon in
Ex rel. Eubanks v. Cole, District Judge,
4 Okla. Cr. 25, 109 Pac. 736. It is therefore not necessary to discuss this question again. In the Eubanks case a' writ of mandamus was denied, because two regular terms of court had not convened since the indictment against the defendant in that case had been presented, and this court there held that the terms of court mentioned in the statute referred to regular terms of court, and did not include or apply to special terms of court.
The demurrer of respondent to the'petition of relator admits the truth of the allegations therein contained, and the case has been submitted upon this petition and demurrer.
Section 20 of article 2 of our Constitution is as follows:
“In all criminal prosecutions the accused shall have the right to 'a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”
This provision of the Constitution guarantees to every defendant charged with crime in this state a substantial right, and we should so construe the Constitution as to secure this right to each defendant, and at the same time not preclude the rights of public justice. What the Constitution means by the term “speedy trial” is found in section 7047, of Snyder’s Comp. Laws. of Okla. 1909, which is as follows:
“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to.be dismissed, unless good cause to the contrary be shown.”
This statute relieves trial courts of construing the term “speedy trial” in each and every case wherein it is presented. When it is found that a defendant in any particular case has not been brought to trial at the next regular term of the court in which his case is triable, after the case has been presented therein, it is the duty of the trial court to order the prosecution to be dismissed, unless it appears that the case had been postponed or continued upon the application of the defendant, or unless the state shows good cause (that is, some legal reason) why said case has not been tried, and why said prosecution should not' be so dismissed. The evident purpose of these provisions of the Constitution and the statute is to require of the officers of the law that they exercise reasonable diligence in preparing for the trial of criminal cases, and to secure to each person charged with crime a trial as soon after the indictment or information has been filed against them as the prosecution can with reasonable diligence prepare for trial; regard being had to the terms of court.
Any delay caused by operation of the rules of law would constitute good cause for continuing a case beyond a second term of the court. Where it appears from the record that a defendant has not been brought to trial at the second term of the court after the prosecution against him has been instituted, and the record does not show that this postponement was caused by the application of the defendant, or' with his consent, then the defendant’s
right, if he demands it, to have the prosecution against him dismissed becomes absolute, .unless good pause is shown by’the state why the case should be continued to a subsequent term of the court; and this showing of “good cause” will not be presumed, but must appear in the record of the trial court, or in the answer to the petition for mandamus. Whether or not the carise shown for the further continuance of a prosecution is sufficient is,addressed to the discretion of the trial court, and if the trial court abuses this discretion, it is subject to review upon appeal or in mandamus proceedings. This rule secures to a defendant his right to a speedy trial, upon the one hand, by protecting him from vexatious, capricious, arbitrary, and oppressive delays, and, upon the other hand, it does not preclude the rights of public justice; for, if good cause for a postponement of a trial exists, the requirements of the statute do not apply. Were it not for this rule, an arbitrary and capricious judge could punish a defendant indefinitely by confining him in prison, pending a final trial, or, if the defendant was on bail, such judge could harass and distress him without limit by keeping a groundless accusation hanging over his head and clouding his good name; while, on the other hand, if good cause exists why a case should be continued from term to term of the court, this cause can be made to appear in the record, and the ends of public justice will be protected.
In the case of
People v.
Morino, 85 Cal. 515, 24 Pac. 892, the Supreme Court of California said:
“The Legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial.”
And then, after setting out section 1382, Pen. Code, it proceeds :
“The court below, in denying the defendant’s motion, said: ‘The question you raise I have considered before, and, under my construction of the law, it is discretionary,' and not mandatory, and I will presume the court was engaged in the trial of other causes.’ We think this is not a proper construction of the law. 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 imprisonment, without such trial, beyond the time provided by the 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 zvas enough for the defendant to shozv that the. time fixed by the statute, after information filed, had expired, and that the cause was not postponed on his application.
If there was any cause for holding him for a longer time without trial, it was for the prosecution to show it.
The court could not presume it.”
In the later case of
In re Begerow,
133 Cal. 349, 65 Pac. 828, 56 L. R. A. 513, 85 Am. St. Rep. 178, the Supreme Court of California, quoting with approval the Morino case, said:
“That case has never been called in question, and it decides some important points. First. The statute is a construction of the constitutional provision, so far as to indicate what is a reasonable time within which the case should be brought to trial, in order that the constitutional guaranty may be kept. And it may be fairly interpreted to mean that this guaranty is violated whenever 60 days is allowed to elapse without a trial (two regular terms under our statute); there being no good reason for delay, and the defendant not consenting thereto. And, in the second place, it decides that it is sufficient for a defendant, in order to make out his case upon a motion for a dismissal in the trial court, to show that he has been detained without a trial for more than 60 days (two regular terms under our statute).
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FURMAN, P. J.
(after stating the facts as above). The jurisdiction of this court to entertain mandamus proceedings in such cases as this was passed upon in
Ex rel. Eubanks v. Cole, District Judge,
4 Okla. Cr. 25, 109 Pac. 736. It is therefore not necessary to discuss this question again. In the Eubanks case a' writ of mandamus was denied, because two regular terms of court had not convened since the indictment against the defendant in that case had been presented, and this court there held that the terms of court mentioned in the statute referred to regular terms of court, and did not include or apply to special terms of court.
The demurrer of respondent to the'petition of relator admits the truth of the allegations therein contained, and the case has been submitted upon this petition and demurrer.
Section 20 of article 2 of our Constitution is as follows:
“In all criminal prosecutions the accused shall have the right to 'a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”
This provision of the Constitution guarantees to every defendant charged with crime in this state a substantial right, and we should so construe the Constitution as to secure this right to each defendant, and at the same time not preclude the rights of public justice. What the Constitution means by the term “speedy trial” is found in section 7047, of Snyder’s Comp. Laws. of Okla. 1909, which is as follows:
“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to.be dismissed, unless good cause to the contrary be shown.”
This statute relieves trial courts of construing the term “speedy trial” in each and every case wherein it is presented. When it is found that a defendant in any particular case has not been brought to trial at the next regular term of the court in which his case is triable, after the case has been presented therein, it is the duty of the trial court to order the prosecution to be dismissed, unless it appears that the case had been postponed or continued upon the application of the defendant, or unless the state shows good cause (that is, some legal reason) why said case has not been tried, and why said prosecution should not' be so dismissed. The evident purpose of these provisions of the Constitution and the statute is to require of the officers of the law that they exercise reasonable diligence in preparing for the trial of criminal cases, and to secure to each person charged with crime a trial as soon after the indictment or information has been filed against them as the prosecution can with reasonable diligence prepare for trial; regard being had to the terms of court.
Any delay caused by operation of the rules of law would constitute good cause for continuing a case beyond a second term of the court. Where it appears from the record that a defendant has not been brought to trial at the second term of the court after the prosecution against him has been instituted, and the record does not show that this postponement was caused by the application of the defendant, or' with his consent, then the defendant’s
right, if he demands it, to have the prosecution against him dismissed becomes absolute, .unless good pause is shown by’the state why the case should be continued to a subsequent term of the court; and this showing of “good cause” will not be presumed, but must appear in the record of the trial court, or in the answer to the petition for mandamus. Whether or not the carise shown for the further continuance of a prosecution is sufficient is,addressed to the discretion of the trial court, and if the trial court abuses this discretion, it is subject to review upon appeal or in mandamus proceedings. This rule secures to a defendant his right to a speedy trial, upon the one hand, by protecting him from vexatious, capricious, arbitrary, and oppressive delays, and, upon the other hand, it does not preclude the rights of public justice; for, if good cause for a postponement of a trial exists, the requirements of the statute do not apply. Were it not for this rule, an arbitrary and capricious judge could punish a defendant indefinitely by confining him in prison, pending a final trial, or, if the defendant was on bail, such judge could harass and distress him without limit by keeping a groundless accusation hanging over his head and clouding his good name; while, on the other hand, if good cause exists why a case should be continued from term to term of the court, this cause can be made to appear in the record, and the ends of public justice will be protected.
In the case of
People v.
Morino, 85 Cal. 515, 24 Pac. 892, the Supreme Court of California said:
“The Legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial.”
And then, after setting out section 1382, Pen. Code, it proceeds :
“The court below, in denying the defendant’s motion, said: ‘The question you raise I have considered before, and, under my construction of the law, it is discretionary,' and not mandatory, and I will presume the court was engaged in the trial of other causes.’ We think this is not a proper construction of the law. 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 imprisonment, without such trial, beyond the time provided by the 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 zvas enough for the defendant to shozv that the. time fixed by the statute, after information filed, had expired, and that the cause was not postponed on his application.
If there was any cause for holding him for a longer time without trial, it was for the prosecution to show it.
The court could not presume it.”
In the later case of
In re Begerow,
133 Cal. 349, 65 Pac. 828, 56 L. R. A. 513, 85 Am. St. Rep. 178, the Supreme Court of California, quoting with approval the Morino case, said:
“That case has never been called in question, and it decides some important points. First. The statute is a construction of the constitutional provision, so far as to indicate what is a reasonable time within which the case should be brought to trial, in order that the constitutional guaranty may be kept. And it may be fairly interpreted to mean that this guaranty is violated whenever 60 days is allowed to elapse without a trial (two regular terms under our statute); there being no good reason for delay, and the defendant not consenting thereto. And, in the second place, it decides that it is sufficient for a defendant, in order to make out his case upon a motion for a dismissal in the trial court, to show that he has been detained without a trial for more than 60 days (two regular terms under our statute). Upon such a showing the court should dismiss the case, unless the cause for detaining the defendant and for continuing the prosecution is shown on behalf of the people. There is no presumption in such case, at least in the trial court, that the court has acted regularly, or that good cause in fact exists.”
In
Ex parte Ford
(Cal.) 116 Pac. 757, this question is-considered at great length, and many authorities are cited and discussed by the Supreme Court of California. This court there says:
“A person charged with a criminal: offense has a right to a speedy trial, in order that, if innocent, he may go- free. To detain him in custody, or to compel him by the exaction of bail to dance attendance upon a court while his trial is arbitrarily postponed without his consent, is not only a wrong and injustice to him, but is a detriment to the public. The design of the
statute, quoted in the opinion of the,court, is to prevent these evils. The effect of that opinion, however, coupled with other decisions in similar cases, is to deprive the statute of its intended operation, so far, at least as its enforcement by this court is concerned, and to pervert it to a use wholly foreign and inimical to its purpose. In effect, it has been held that, no matter how unjustifiably the right secured by the statute has been disregarded by the superior court, the party injured has no remedy, except by an appeal to this court; and this, obviously, is no remedy at all for an innocent man, whose trial has been unreasonably delayed, because upon his acquittal he has nothing to appeal from. The only persons who can appeal are those who have been found guilty, and they, if their convictions are otherwise illegal, have no occasion to resort .to this statute for their deliverance. The only person, therefore, who can secure its benefits through the intervention of this court is one who stands convicted under a judgment in all other respects free from error; or, in other words, one who is actually guilty of the crime charged against him.
People v.
Morino, 85 Cal. 515, 24 Pac. 892. It is very safe to say that the Legislature would never have enacted such a law if this were the only case in which it could be made effective. The truth is the law was enacted, like all similar provisions relating to criminal procedure, for the benefit of the innocent, and not for the sake of screening the guilty. It is true with respect to this, as with respect to all rules of procedure deemed necessary for the security of innocent men unjustly accused. Guilty men also, being deemed innocent until proven guilty, may take advantage of them; but it is a most extraordinary result that for the wanton and deliberate violation of this rule an innocent man has no remedy, while one justly convicted of a crime may by means of it evade the penalty. To me it seems there must be a mistake somewhere in the decisions that lead to such a result, and I think the mistake consists either in holding that the injured party cannot resort to a mandamus, as this opinion holds, or in holding that he cannot resort to
habeas corpus,
as was held upon a former proceeding by this petitioner (December 12, 1892). If an innocent man, who is kept in jail month after month while his trial is arbitrarily postponed, cannot resort to this court for relief, either by
habeas corpus
or by mandamus, I know of no other remedy he has. Appeal, as above stated, is no remedy, for he cannot appeal until after a trial, and the refusal to bring him to trial is the very wrong of which he complains; and, moreover, being innocent, it is to be presumed he will be acquitted, if he ever is brought to trial, and that he
will have nothing to appeal from. I cannot bring myself to admit that for such a wrong there is no remedy, and consequently
T
feel satisfied that either
habeas corpus
or mandamus must lie.”
The court then goes further and holds that mandamus is the propel’ remedy in such cases. These cases present our views fully and clearly, and we regard them as decisive of this question.
The relator in this case having shown, and it being admitted by the demurrer of the respondent,- that two regular terms of the county court of Kingfisher county, wherein this prosecution is pending had convened, been held, and terminated since the information in this cause was filed therein, and the relator had entered his plea thereto and had been demanding a trial, and that postponements .of this case were not with his consent, but were over his objection, and no legal reason appearing in the record for these postponements, we are of the opinion that the peremptory mandamus should be issued.
It is therefore ordered by the court that the respondent, the Honorable John M. Graham, judge of the county court of Kingfisher county, Okla., be and is hereby directed and commanded to dismiss the prosecution in cause No. 339, wherein the state of Oklahoma is plaintiff, and the relator, Dan McLeod, is defendant.
Writ of mandamus as prayed for will issue.
ARMSTRONG and DOYLE, JJ„ concur.