Ex Rel Eubanks v. Cole, District Judge , 4 Okla. Crim. 25 ( 1910 )

The motion to dismiss presents the preliminary proposition: Has this court jurisdiction of the cause? The question of jurisdiction must be settled by a reference to the Constitution and the statutes. By the provisions of section 2, art. 7, of the Constitution of this state, and an act of the Second Legislature entitled, "An act perpetuating the Criminal Court of Appeals, defining its duties, powers, and jurisdictions," approved March 2, 1909, this court is given exclusive appellate jurisdiction in all criminal causes. The act contains the following provisions:

"Sec. 7. The Criminal Court of Appeals shall have exclusive appellate jurisdiction in all criminal cases appealed from county and district courts in this state, and such other courts as may be established by law.

"Sec. 8. The appellate and original jurisdiction of the Criminal Court of Appeals shall be invoked in the manner prescribed by law.

"Sec. 9. The Criminal Court of Appeals shall have exclusive appellate jurisdiction coextensive with the limits of the state in all criminal cases, in the manner, and under such regulations as may be prescribed by law.

"Sec. 10. Said court and judges thereof shall have the power to issue writs of habeas corpus; and, under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction; and may prescribe and promulgate such rules for the government of said court as it may deem necessary.

"Sec. 11. Said court shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction." (Laws 1909, c. 14, art. 2.)

Upon a careful consideration of the law, we are of opinion that this court has the jurisdiction and power to issue the writ of mandamus where the same is a proper proceeding in a criminal case. As we view it, the proceeding in this case seeks only to invoke the exercise of the exclusive appellate jurisdiction of this court. This is a court of special jurisdiction, limited in the exercise of its powers exclusively to criminal cases, and it is undoubtedly true that, except in cases where under the law this court has original jurisdiction, all exercise of power in other cases must be in virtue of its appellate jurisdiction, and the writ of mandamus can be issued only in the exercise or in aid of its appellate authority. A mandamus to an inferior court is in the nature of appellate jurisdiction. The term "appellate," in the constitutional phrase, "a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases," is not used in a restricted sense, but in its broadest sense, as embracing the power and jurisdiction to review and correct the proceedings of inferior courts in criminal cases, brought before it for determination, in the manner provided by law. The statute prescribes the procedure by which such proceedings shall be brought before this court, and among the other modes prescribed the writ of mandamus may be a proper proceeding. Snyder's St. §§ 2016, 6224. The Supreme Court of the United States, with a few enumerated exceptions, has only appellate jurisdiction under the Constitution of the United States, and Congress has not the power to confer original jurisdiction on it. Consequently that court cannot ordinarily issue an original writ of mandamus. Marbury v.Madison, 1 Cranch, 137, 2 L.Ed. 60. However, the practice of issuing such writs as an exercise of its appellate jurisdiction and in aid of its appellate jurisdiction has been asserted and upheld in numerous cases.

In the case of Ex parte Crane, 5 Pet. 190, 8 L.Ed. 92, which was an application for a mandamus to the circuit court of the United States for the Southern district of New York, commanding the court to review the settlement of several bills of exceptions, Chief Justice Marshall, delivering the opinion of the court, said:

"A doubt has been suggested respecting the power of the court to issue this writ. The question was not discussed at the bar, but has been considered by the judges. It is proper that it should be settled, and the opinion of the court announced. We have determined that the power exists. Without going extensively into this subject, we think it proper to state, briefly, the foundation of our opinion. In England the writ of mandamus is defined to be a command issuing in the king's name, from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King's Bench has previously determined, or at least supposes to be consonant to right and justice." Blackstone adds: "That it issues to the judges of any inferior court commanding them to do justice according to the powers of their office, whenever the same is delayed; for it is the peculiar business of the Court of King's Bench to superintend all other inferior tribunals, and therein to enforce the due exercise of these judicial or ministerial powers with which the crown or Legislature have invested them, and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice. 3 Bl. Com."

Continuing, the eminent Chief Justice makes the following distinction:

"A mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States is in the nature of appellate jurisdiction."

In the case of Ex parte Bradley, 7 Wall. 365, 19 L.Ed. 214, that court held that mandamus lies to be an inferior federal court to restore to practice an attorney who has been improperly disbarred. Mr. Justice Nelson, speaking for the court, used this language:

"It is true that this remedy even when liberally expounded, affords a far less effectual security to the occupation of attorney than is extended to that of every other class in the community; for we agree that this writ does not lie to control the judicial discretion of the judge or court; and hence, where the act complained of rested in the exercise of this discretion, the remedy fails. But this discretion is not unlimited, for, if it be exercised with manifest injustice, the Court of King's Bench will command its due exercise. It must be a sound discretion and according to law. As said by Chief Justice Taney, in Ex parteSecombe [19 How. 13, 15 L.Ed. 565]: `The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility.' And by Chief Justice Marshall, in Ex parte Burr [9 Wheat. 530, 6. L.Ed. 152]: `The court is not inclined to interpose, unless it were in a case where the conduct of the Circuit or District Court was irregular, or was flagrantly improper.'"

In the case of People v. Bacon, 18 Mich. 247, the court said:

"Where a mandamus issues to direct the action of a legal tribunal proceeding in the course of justice, it is an exercise of supervisory judicial control, and is in the nature of appellate action. In other cases it is generally, if not always, an exercise of original jurisdiction."

In this state a person charged with a criminal offense has an absolute right to a speedy trial, in order that, if innocent, he may go free. The Bill of Rights provides that: "Right and justice shall be administered without sale, delay, denial or prejudice." And that: "In all criminal prosecutions the accused shall have the right to a speedy and public trial."

If we comprehend the purport of the constitutional guaranty, it means that no trial court shall arbitrarily without cause, or by reason of passion, prejudice, or personal hostility, deny to a defendant the right of a speedy trial. And when his trial has been arbitrarily postponed, or the court has refused to take any action, and the case is beyond the exercise of judicial discretion or there is a flagrant violation of constitutional right, or the trial court is without jurisdiction, our Constitution and laws afford a remedy, either by habeas corpus, if the accused is in custody, or by mandamus, where the accused has been admitted to bail, and this court as the exclusive appellate court in criminal cases has jurisdiction to grant relief. However, where the issue involves only the exercise of judicial discretion, there is a plain and adequate remedy in the ordinary course of the law. Ex rel. Sims v. Caruthers, Judge,1 Okla. Cr. 428, 98 P. 474; Ex parte Fowler, 3 Okla. Cr. 196, 105 P. 180. The petition alleges facts sufficient at least to justify a rule to show cause or the allowance of an alternative writ, and for this reason the demurrer is overruled.

The preliminary objections to the exercise of our jurisdiction having been disposed of, the case is now before us on the answer made by the respondent as district judge to the alternative writ. The statements in the answer are conclusive, and must be taken as true, and the question is whether a peremptory writ of mandamus should be issued notwithstanding the answer. Section 7047, Snyder's St., provides:

"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 the 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."

To epitomize the facts, the relator was indicted at the October, 1909, term of the district court, which term ended on the 4th day of February, 1910. On the 8th day of February, 1910, a special term of said district court convened, with Hon. G.W. Clark, presiding judge, at the instance and request of relator, for the purpose of hearing his motion to quash said indictment. Another special term of said district court convened on the 28th day of February, 1910, with Hon. John Caruthers, presiding judge, for the purpose of rendering judgment in an election contest case, wherein respondent was disqualified to sit as judge. On the 31st day of December, 1909, the Supreme Court ordered that the next regular term of the district court of Pittsburg county should commence on the first Monday in March, 1910, and extend up to and including the 31st day of May, 1910. The Legislature in extraordinary session (Act March 25, 1910) provided that the regular terms of the district court of Pittsburg county should commence on the first Monday in January, May, and October each year. On the 29th day of April, 1910, relator filed his motion to dismiss. Whereupon respondent made an order setting the hearing on said motion for May 5th. On May 5th Hon. R.M. Rainey, as presiding judge, overruled said motion to dismiss, and set the case May 12, 1910, for trial. Upon the facts as stated in the answer, the relator's constitutional right to a speedy trial has not been violated or infringed upon.

The provision of Procedure Criminal, above quoted, is intended as a legislative declaration of what is and what is not a reasonable and proper delay in bringing an accused person to trial in respect to his constitutional right aforesaid. The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision. State v. Keefe, 17 Wyo. 227,98 P. 122, 22 L.R.A. (N.S.) 896; Newlin v. People, 221 Ill. 166, 77 N.E. 529; State v. Kuhn, 154 Ind. 450, 57 N.E. 106; Benton v.Commonwealth, 91 Va. 782, 21 S.E. 495; State v. Dewey,73 Kan. 735, 88 P. 881.

In the case of Ex parte Stanley, 4 Nev. 113, Justice Lewis, delivering the opinion of the court, said:

"That 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 Rights; 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 same 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. He 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 is guaranteed to the prisoner shall operate to deprive the state of a reasonable opportunity of fairly prosecuting criminals."

"The term `speedy trial,' as it occurs in the Constitution, has been judicially interpreted as meaning generally a trial as soon after indictment as the prosecution can, with reasonable diligence, prepare for, regard being had to the terms of court." (12. Cyc. 498.)

"A trial regulated and conducted by fixed rules of law, and any delay created by the operation of those rules, does not work prejudice to any constitutional right of the defendant." (Church on Habeas Corpus, par. 254.)

"A trial conducted according to fixed rules, regulations, and proceedings of law, free from vexations, capricious, and oppressive delays." (6 Ency. L. [2d Ed.] 993.)

By this provision of the statute an absolute right is conferred upon a defendant indicted for, or charged by information with, a public offense, whose trial has not been postponed upon his application to have the case dismissed, unless tried before the end of the second term of the court after indictment found or information filed, unless good cause to the contrary be shown. The statute is for the purpose of carrying into effect the constitutional guaranty of a speedy trial. It was never intended to apply to the facts in a case like the one at bar. Here there was no laches or delay on the part of the state in the spirit and intention of the statute.

The question as to whether or not respondent as district judge erred in holding that he was disqualified and his refusal to hear and determine the case is a question which does not arise in this proceeding and is a question which we do not now consider.

The special terms of said district court so ordered and held cannot be considered in fixing the time in which a defendant may have his case dismissed. The words "next term" mean the next regular term. The enactment of the statute fixing the terms for the district court of Pittsburg county did not of itself postpone or delay relator's trial. The regular March, 1910, term which would have terminated on the 31st day of May, 1910, was thereby merged into the May term as fixed by the statute. Relator was not, and is not, entitled to have his case dismissed by reason of any delay made necessary by the law itself.

In the case of Ex parte State, In re Tate, 76 Ala. 482, it was said:

"By the Declaration of Rights, the accused in all prosecutions by indictment has a right to `a speedy public trial, by an impartial jury of the county or district in which the offense was committed.' The constitutional provision contemplates legislative enactments, and may be regarded as mandatory on the Legislature. * * * enjoining the duty to organize competent courts, to establish suitable modes of judicial proceedings, and provide adequate machinery for the administration of the criminal law, so that there shall be no unreasonable or unnecessary delay in bringing on a trial. Much must be left to the sound discretion and judgment of the law-maker to make such provisions as will guard on the one hand against undue haste to the detriment of the public interests and safety, and, on the other, against improper, unjust, and unwarranted procrastination, to the denial of the rights of the accused. When there have been legislative enactments, reasonably adapted to secure a speedy trial, the constitutional guaranty cannot operate to discharge the accused, because of mistaken legislation, or because of a failure to foresee and provide for every contingency which may occasion delay. Continuances in the discretion of the presiding judge, or delay occasioned by want of time to try, or any like necessitating circumstances, do not contravene the right to a speedy trial. The accused is not entitled to a discharge by reason of any delay made necessary by the law itself."

The doctrine of this case is quoted with approval in Samplev. State, 138 Ala. 259, 36 So. 367. In the case of Beavers v.Haubert, 198 U.S. 77, 25 Sup. Ct. 573, 49 L.Ed. 950, Mr. Justice McKenna used this language:

"The right of a speedy trial is necessarily relative. It is consistent with delays, and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."

The question as to whether or not the court erred in discharging the jury first drawn, or the question as to whether or not the court erred by giving preference to civil over criminal cases in the term, is one which we need not discuss other than to state that the regulation of the business of the term is a matter exclusively within the control of the district judge. We find that there has been no unnecessary delay or laches, nor negligence on the part of respondent in securing to relator a speedy trial. His substantial rights have not been disparaged, and his constitutional right to a speedy trial has not been abridged. The motion to dismiss the case was properly overruled by Judge Rainey.

Entertaining these views, the peremptory writ of mandamus will be denied.

FURMAN, PRESIDING JUDGE, and RICHARDSON, JUDGE, concur.