In the Matter of the Application of WILLIAM C. DOUGLAS for a Writ of Habeas Corpus:
WILLIAM C. DOUGLAS, Appellee THE STATE OF ARIZONA, Appellant,
APPEAL from an order of the Superior Court of the County of Maricopa. E. R. Thurman, Judge. Order appealed from vacated and set aside and cause remanded with directions.
Mr. Joe Conway, Attorney General, and Mr. Lin Orme, Jr., and Mr. Charles Bernstein, Assistant Attorneys General, for the State.
Mr. George T. Wilson and Messrs. Minne & Sorenson, for Appellee.
[54 Ariz. 333] ROSS, C.J.
The appellee, William C. Douglas, was informed against in the superior court of Maricopa county but not tried within sixty days. For this failure, he was discharged from the custody of the sheriff upon a writ of habeas corpus. The state has appealed.
The facts are stipulated and thereunder it appears that appellee was informed against in the superior court of Maricopa county, on January 30, 1937, for a felony; that he was arraigned and pleaded not guilty February 8th and trial was set for March 16th, on which date he, with his counsel, appeared in court ready for trial but the trial was not had on that day for some reason not explained. March 24, 1937, a bench warrant was issued for his apprehension but was not served, although it appears that he was at all times up until or about April 17, 1937, in the jurisdiction of the court.
It also appears that on March 5, 1937, appellee was indicted in the United States District Court for Arizona under the name of James C. Douglas for an offense against the federal postal laws, and that at his arraignment on March 8, 1937, he pleaded not guilty; [54 Ariz. 334] that his trial was set for March 25, 1937; that on March 22d he withdrew his plea of not guilty and entered a plea of guilty and was on such date sentenced to a term of two years in prison, and was on April 17, 1937, committed to the federal penitentiary at McNeil Island. At the expiration of his term of imprisonment the sheriff served the bench warrant theretofore, on March 24, 1937, placed in his hands, and by virtue thereof was holding appellee when the order discharging him was made.
The appellee contends that this imprisonment was illegal. He bases his contention upon the provisions of section 5204, Revised Code of 1928, by the terms of which a party charged with a crime must be tried within sixty days after the information or indictment is filed in court, unless upon his application or for good cause the trial was postponed.
The usual procedure when there is delay beyond sixty days is to call the court's attention thereto by motion and, if the delay is not for good cause or on the prisoner's application for a postponement, to urge the dismissal of the case. If the motion is denied and the defendant is dissatisfied therewith he may have the matter reviewed on appeal, or he may test the legality of his confinement by habeas corpus. The Attorney General contends that before he should be granted a writ of habeas corpus, he should exhaust his remedy by motion
to dismiss. We think the usual procedure by motion is manifestly to be preferred, because it is made to the court in which the indictment or information is filed and where the court possesses the power to ascertain the reasons for delay and to make a record thereof. It is more direct, speedier, and less expensive.
The point is a new one with us and the cases in other jurisdictions are divided on it. The rule in [54 Ariz. 335] Illinois, stated in People ex rel. v. Murphy, 212 Ill. 584, 72 N.E. 902, 904, is as follows:
"The statute under consideration cannot be held, in view of its provisions, to be an unqualified mandate that the prisoner shall be released by the mere lapse of time, or the mere fact that he is not given a trial at a term of court commencing within four months of the time of his commitment. Not only must the time elapse, but the circumstances must be such that it is error for the court to longer detain him, and, as to these circumstances and to his right of discharge, he must obtain the judgment or ruling of the court having jurisdiction of the cause. If an indictment is found, then, thereafter, the benefit of this statute must be sought in the court having jurisdiction of the cause; that is, the court in which the indictment is pending. If the prisoner does not apply to that court and obtain from it an order discharging him, or refusing to do so, he is in no position to complain, as he should not be allowed to complain, on writ of error or otherwise, that he has not received an order he has not asked for. Before the action or refusal to act of the trial court can be assigned for error, the court must at least be called upon to act. Error cannot be assigned upon a mere failure of the court to discharge a prisoner under the provisions of this statute, who has not asked or moved the court do so. It is not the intent or purpose of the law that mere errors committed or arising out of matters wherein a court is exercising a discretion, as in this case, during the pendency of the trial, and reviewable upon error, shall be reviewed by courts of concurrent jurisdiction, or any court for that matter, under a writ of habeas corpus. The writ of habeas corpus is not for the purpose of reviewing errors, and is only authorized in those cases where the court has acted without jurisdiction. People ex rel. v. Allen, 160 Ill. 400, 43 N.E. 332; People ex rel. v. Foster, 104 Ill. 156; Ex parte Thompson, 93 Ill. 89; Ex parte Smith, 117 Ill. 63, 7 N.E. 683; People v. Murphy, 202 Ill. 493. 67 N.E. 226; 15 Am. & Eng. Ency. of Law (2d Ed.) 172." [54 Ariz. 336]
In an early case, Von Feldstein v. State,17 Ariz. 245, 150 P. 235, the facts show that a motion to dismiss the information for failure to bring the case to trial within sixty days was made and denied; that thereafter a writ of Habeas corpus was applied for and, while the question of procedure we are now considering was not in issue, we quoted with approval from Ex parte ...