State v. Arthur

Wright, J.

3. criminal missaubr want of prosecution. In consonance with the provisions of the constitution, which secures to one charged with a public oifense a speedy as well as a public trial, our statute declares that, if his trial is not postponed *0Jl own application, it must be brought on at the next regular term after the indictment is found; and, if not, it must be dismissed, unless good cause to the contrary be shown. Rev., $5,008. Was good cause shown in this case ? Of this we have no doubt.

He was tried at the first term after indictment found, save the one when he failed to appear, and'his recognizance was forfeited. Thus far, therefore, he cannot complain. His motion in arrest, &c., was made and remained undisposed of until in Hay. At this term the State was under no necessary obligation to be ready, for the prisoner was then seeking to avoid a conviction, and it could not be known that the verdict would be set aside. Then, again, while defendant did not apply or ask for the continuance, he did not resist it; but it seems to have been granted without objection, to give time to prepare exceptions to the rulings. At the next term, he was again in default, and of course the State would not be in default in not preparing for trial until this was set aside. In June last it was set aside, his motion to be discharged was overruled, and one ground of that motion was that he had not had the speedy trial contemplated by the law. Under the facts, no claim could be more unfounded. Twice in default, tried once. Each term afterwards when present, seeking to avoid what he deemed an illegal verdict, or one which did not warrant a conviction, at no time resisting a continuance or demanding a trial, he is in no position to ask a discharge upon this ground. If thus entitled, forfeitures of recognizances would indeed be passports to the favor of courts, and defeat the whole object and purpose of the law.

*325

2,__d6. verdict, II. That this verdict was fatally defective, in failing to find that the prisoner had this counterfeit coin, “ with a knowledge” &c., is not denied. It partakes of the .nature of a special verdict. This it certainly is, rather than a general verdict, as defined by the statute. Assuming it to be such, then, as it did not pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, the order should have been that they “retire for further deliberation.” §§ 4834,4838-9. This was not done, however, and now the question is, could the court set it aside, against defendant’s objections, and put him on trial again for the same offense ? In other words, was he entitled, as a matter of right, to a judgment of acquittal % Our opinion is that this is not one of those cases entitling the prisoner to be discharged.

In the first place, he himself moved in arrest of judgment, and, under such circumstances, it is said that' he is presumed to have waived any objection to being put á second time in jeopardy, and that he may ordinarily be tried anew. 1 Bishop. Or. Law, § 673, and the many cases there cited in the note.

'Without placing our decision upon this ground, however, we hold that it was competent for the court, against his objection, to set aside the verdict, and order a retrial. The case is not different, in the essential principles involved, from those settled and recognized in the State of Iowa v. Redman, 17 Iowa, 329 , and Same v. Turner, 19 Id., 144. In the first,- the verdict was such, by reason of its failure to state the value of the property stolen, that no judgment could be entered, and it was held that the District Court properly ordered the.prisoner to be retried. In the second, the verdict was claimed to be defective, upon a ground not very dissimilar to that urged in this. And while the verdict was held good, the rules *326 announced are in accord with the action of the court below in this. And fully supporting this action is the Case of The State v. Duncan, 2 McCord, 129 , where there was a special verdict, defendant ashed to be discharged, upon the ground that, by*the finding, he was not guilty. The appellate court held it defective, that it did not warrant a judgment, either for or against him, and yet awarded a venire de novo.

Affirmed.