[82 Ariz. 376] Gibson & Gibson, Phoenix, for appellant.
Robert Morrison, Atty. Gen., Thomas Tang, Asst. Atty. Gen., Wm. P. Mahoney, Jr., County Atty., Phoenix, for appellee.
This is an appeal from a judgment of conviction and from orders denying defendant's motion for dismissal in arrest of judgment, and for a new trial.
The facts, briefly outlined, show that on or about June 6, 1956, the defendant Ronald Otis Churchill, after an evening of drinking, was discovered at approximately 2 a. m. [82 Ariz. 377] while burglarizing a room at the Paducah Hotel. He left the hotel and forced his way into the apartment of one John G. Gemelos located on North 4th Avenue, Phoenix, Arizona. He terrorized Mr. Gemelos for a period of approximately one hour, ransacked the apartment, took approximately $38.75, bound and gagged Mr. Gemelos, broke an empty bottle over his head and pistol-whipped him before leaving.
The defendant then slipped through the police net that had been thrown around the area, and went east across town where he broke into a secluded cabin hidden from the street that belonged to one Mrs. Poley. He threatened Mrs. Poley with his pistol and, when a neighbor, Mrs. Peters, came to investigate, the defendant in an undressed condition rushed out, grabbed her, struck her on the head with the gun and dragged her into the Poley cabin and proceeded to rip the clothing from her. The police arrived shortly thereafter and sergeant Mason West went to the door and ordered the defendant to come out. The defendant answered by firing a round through the door, barely missing the officer. He was finally forced from the cabin by means of tear gas and was apprehended completely unclothed.
The proceedings against the defendant are shown by the record. A complaint was filed on June 7, charging him with robbery, two counts of assault with a deadly weapon, a charge of assault with intent to commit rape, and a charge of burglary. The defendant waived preliminary examination before the committing magistrate on June 8 and was bound over to the Superior Court. An information was filed on June 11, 1956 charging the five felony counts enumerated above. Defendant was arraigned on the information on June 18 and entered a plea of not guilty. Trial of said cause was set for August 10, 1956. This trial setting was the last day within the sixty-day statutory period insisted upon by the defendant. On August 2, 1956 the county attorney contacted the Honorable Henry S. Stevens, Judge, Superior Court, Maricopa County, for advice as to the probability of the case being reached by the court on the day set in order to prepare for trial. The Court, at that time, being of the opinion that the case could not be tried on the date set, on its own motion and over the objection of the defendant's counsel, vacated the trial setting of August 10 and reset the cause for trial on August 20, 1956, which was ten days beyond the sixty-day statutory period from the time the information was filed.
Trial of this cause was thereafter begun on August 20 and resulted in convictions on August 22. The convictions were on all counts except the charge of burglary which had been dismissed by the county attorney at the commencement of the trial.
At the commencement of the Superior Court trial before the Honorable Francis J. Donofrio on August 20, counsel for defendant[82 Ariz. 378] again moved to dismiss on the grounds that the trial date was beyond the sixty-day statutory period. This motion was denied after argument. After conviction and prior to sentencing, on August 31, 1956, defendant argued his motion for a new trial and motion in arrest of judgment, raising again the sixty-day limitation. The motions were denied after argument and the defendant was thereafter sentenced.
The sole question raised and argued on appeal is: was the defendant denied his right to a speedy trial, guaranteed by Art. 2, Section 24 of the Arizona Constitution, A.R.S.? Tis provision reads in part as follows:
'Rights of accused in criminal prosecutions. Section 24. In criminal prosecutions, the accused shall have the right * * * to have a speedy public tiral * * *.'
The above constitutional provision does not fix any particular time period, however, section 1274, P.C.1913, now 17 A.R.S.Rule 236 of our Rules of Criminal Procedure, was intended to implement the 'speedy trial' provision of the constitution, Matter of Von Feldstein, 17 Ariz. 245, 249, 150 P.
235. The rule provides substantially, as follows:
'When a person has been held to answer for an offense, * * * if he is not brought to trial for the offense within sixty days after the indictment has been found or the information filed, the prosecution shall be dismissed upon the application of such person, or of the county attorney, or on the motion of the court itself, unless good cause to the contrary is shown by affidavit, or ...