State v. Reynolds

66 P. 614, 24 Utah 29, 1901 Utah LEXIS 62

• Court: Utah Supreme Court
• Decided: November 13, 1901
• Docket: No. 1322
• Status: Published

Opinion

BARTCH, J.

The defendant, it appears, was prosecuted for, and convicted of, the crime of “having sexual intercourse with a female person over the age of thirteen years, and under the age of eighteen years.” Upon having been sentenced to imprisonment in the state prison for a term of two years, he appealed to this court.

is held to answer, or with any other offense disclosed by the testimony. The performance of this duty is not discretionary with the attorney, but is imperative, and a willful violation of the statute in this regard would render the attorney liable to punishment for contempt or to prosecution for neglect of duty. A person charged with a crime has the constitutional right (Const, art. 1, sec. 12) “to have a speedy public trial by an impartial jury,” and neither the prosecuting attorney nor the court has any discretionary power to deny him that right. While all this is true, still the mere fact that the information was not filed within the thirty days after examination 1 and commitment does not, of itself, entitle the defendant to a'discharge. Nor does the statute so provide. Where good cause appears for delay in prosecuting, the prisoner can not be heard to complain. This is clear from- an examination of section 5065,. Revised Statutes, which specifies the cases where the defendant has the right to have the prosecution dismissed. The question, then, is, was there good cause, or a legal excuse, for the delay in filing the information in the present instance. We are of the opinion that this question must be answered in the - affirmative. Erom the record it appears that the first information was filed in this case within thirty days from the time of commitment, by the district instead of the county attorney, pursuant to chapter 56, Session Laws 1899. Under that information the defendant was prosecuted and convicted, but, upon his motion in arrest of judgment, the conviction was held illegal and void. Thereafter various informations were filed by the district attorney, under chapter 56, and proceedings were had, until the decision of this court in the case of State v. Beddo, 22 Utah 432, 63 Pac. 96, when it was ascertained that the district attorney had no power to file informations in criminal cases; that portion of chapter 56, conferring such power on such officer having therein been declared void. Thereupon the information complained of herein was filed, which again resulted in the eon-

The appellant, among other things, contends that his conviction was unlawful, because secured under an information filed more than thirty days after the filing of the commitment by the committing magistrate. It is insisted .that this was in violation of section 4692, Revised Statutes, which reads: “When a defendant has been examined and committed as provided in this code, it shall be the duty of the county attorney, within thirty days thereafter, to file in the district court of the county in which the offense is triable, an information charging the defendant with the offense for which he is held to answer, or any other offense disclosed by the testimony, whether it be the offense charged in the complaint on which the information was held or not. If the county attorney fails to file the information within the time specified, he shall he deemed guilty of contempt, and may be prosecuted for neglect of duty as in other cases.” This statute clearly makes it the duty of the county attorney to file an information within thirty days after the examination and commitment- of a defendant by a magistrate, charging him with the offense for which he viction of the defendant. Without further reference to the facts and circumstances, it is clear, from an examination 2 of the record, that good causp existed for the delay in this prosecution, and that the fact that the present information was not filed within thirty days after commitment can not be of avail to the appellant.

It is also contended that the district attorney had no power or authority to file the information under which the defendant was finally convicted and sentenced to imprisonment. That information was filed April 24, 1901, pursuant to the act approved March I, 1901 (chapter 28, Sess. Laws 1901); but it is claimed that, under our Constitution, that act had not taken effect at the date of the filing of the information, because it had not been published, and that, therefore, the prosecution was unauthorized. The Constitution, in article 6, section 25, provides: “All acts shall be officially published, and no act shall take effect until so published, nor until sixty days after the adjournment of the session at which it passed, unless the Legislature by a vote of two-thirds of all the members elected to each house; shall otherwise direct.” Under this provision it is insisted that, notwithstanding an emergency may exist, no act of the Legislature can take effect until the same has been officially published. We do not regard 3 such'a construction warranted by the language used, nor as in harmony with the intent of the framers of the Constitution; their evident design, as appears from the context, having been to empower the Legislature, in the case of any emergency existing warranting it, to make provision in .an act to take effect immediately upon its approval. The subordinate clause introduced by the conjunction “unless” was doubtless intended to modify both of the clauses immediately preceding. The meaning, therefore, is that no act shall take effect until officially published, unless the Legislature, by a two-thirds vote, shall otherwise direct, nor shall any act take effect until sixty days after the adjournment of the session at which it passed, unless the Legislature likewise shall otherwise direct. In the act in question it was provided that it should take effect upon approval. It was approved March 1, 1901, and immediately became operative, and was, therefore, in effect on April 24, 1901, when the last information herein was filed, although it had not previously been published. It follows that the district attorney was the proper officer to file the last information, because the person designated in the act to perform that duty. Thereafter the court had jurisdiction to proceed with the trial of the case, and from the record the conviction appears to be lawful. The other points presented are not, in view of the facts disclosed, deemed of sufficient importance to require separate discussion, no reversible error appearing.

The judgment is affirmed.

MINEE, C. J., and BASKIN, J., concur.