Opinion
No. A-6999.
Opinion Filed January 4, 1930.
Dismissal — Right to Dismissal Because not Given Speedy Trial. Where a person charged with a crime is not brought to trial at the next term after the charge against him is triable and seeks to have the prosecution dismissed under the provisions of section 2913, C.O.S. 1921, he must affirmatively show that the delay in bringing the cause to trial was on the part of the state through its prosecuting officers, and, if on bail, he must affirmatively show that he demanded a trial and resisted the continuance of the case from term to term. When he has done that, the burden is then on the state to show good cause for the delay.
Appeal from County Court, Logan County; A.H. Boles, Judge.
Clyde Stearns was convicted of possessing intoxicating liquor, and he appeals. Reversed, with directions.
Dale, Brown Hoyland, for plaintiff in error.
The Attorney General, for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.
The defendant was informed against on the 7th day of February, 1927 and on the same day was arraigned, entered his plea of not guilty, and was released on bond. On the 10th day of October, 1927, defendant filed motion to dismiss said cause for failure of the state to bring the defendant to trial at the next term of court as required by section 2913, C.O.S. 1921. This motion to dismiss was not passed on until the 15th day of February, 1928, when the same was overruled. It appears from the record that the defendant was present with his witnesses at the April, July, and October terms of court demanding trial, and that the cause was continued each time over his objections. This court has repeatedly held that the state must either bring the defendant to trial at the next term of court unless the cause be continued by arrangement of the state and the defendant, or unless the said cause is continued upon application of the state for good cause shown. Parker v. State, 7 Okla. Cr. 238, 122 P. 1116, 124 P. 80; Smith v. State, 27 Okla. Cr. 294, 227 P. 901; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 P. 485; Harris et al. v. John B. Ogden, 44 Okla. Cr. 418, 281 P. 316.
The defendant having made a sufficient showing to entitle him to a dismissal of the cause for failure of the state to bring the case to trial at the next term of court as required by law, and the state having made no showing to the contrary, it was reversible error for the trial court to overrule the motion to dismiss the case.
For the seasons stated, the case is reversed, with directions to the trial court of Logan county to dismiss the case.