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Hernandez v. State

Supreme Court of Arizona

May 16, 1932

EUTROPIO HERNANDEZ, Appellant,
v.
STATE, Respondent

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr. William J. Fellows, for Appellant.

Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Lloyd J. Andrews, County Attorney, for the State.

OPINION

LOCKWOOD, J.

Eutropio Hernandez, hereinafter called appellant, was convicted in the superior court of Maricopa county for the crime of selling intoxicating liquor, and has brought his case before us for review. There is but one point raised in the appeal, and a statement of the facts preceding the [40 Ariz. 201] trial is all that is necessary for the proper understanding of the issue involved.

Appellant was informed against on the 3d of July, 1931. He was arraigned on the 13th of July, being represented at that time by his present counsel, William J. Fellows. The reading of the information was waived, and the appellant entered a plea of not guilty, and the court thereupon set the case for trial for the twenty-fourth day of September. Neither appellant nor his counsel then or afterwards made any objection to the date of trial fixed by the court, until September 22d, when appellant filed a motion to dismiss the prosecution upon the ground that the case had not been brought to trial within sixty days after the filing of the information, as required by the provisions of section 5204, Revised Code of 1928. The motion was denied, and the court proceeded to try the case over the objection of appellant, finding him guilty as charged, and sentencing him to pay a fine of $100, and be imprisoned for four months in the county jail.

Motions in arrest of judgment and for new trial, based on the same grounds as the motion to dismiss, were duly filed and denied by the court, and the matter is now before us on appeal.

Section 24, article 2 of the Constitution of Arizona provides:

"In criminal prosecutions, the accused shall have the right . . . to have a speedy public trial. . . ."

This constitutional provision has been made more specific by the legislature in section 5204, supra, which reads, so far as material, as follows:

"§ 5204. Dismissal for want of prosecution. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed . . . if a defendant, whose trial has not been postponed upon his application, is not brought to trial within [40 Ariz. 202] sixty days after the finding of the indictment or the filing of the information."

It is evident from the foregoing recital of facts that the defendant was not tried within the sixty days set forth in section 5204, supra.

We have held in the case of In re Von Feldstein,17 Ariz. 245, 150 P. ...


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