State v. Endsley

Baetch, C. J.

The defendant in this case was prosecuted for and convicted of the offense of grand larceny. On this appeal, it is insisted that the court erred in refusing to discharge the accused upon motion made for that purpose, and based on the ground that the case was not tried at the next term after filing the information, as required by Sec. 5065, B. S., which provides:

‘ ‘ The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: •

“1. When a person has been held to answer for a public offense, if an information is not filed nor an indictment found against him at the next term of the court at which he is held to answer.

“ 2. If a defendant whose trial has not been postponed upon his application, is not brought to trial at the next *480 term of the court In which the information or indictment is triable, after it is filed or found.”

Doubtless by this statute the Legislature intended to secure to every defendant, in a criminal prosecution, a speedy trial, in the absence of good cause being shown for delay; and in a case where the accused himself makes no application for a postponement, and the prosecution fails to proceed to trial at the next term £ ‘ in which the information or indictment is triable, after it has been filed or found, ’ ’ without showing good cause for such failure, it will be the duty of the court, on motion of the defendant, to discharge him. But to entitle a defendant, to favorable action upon his motion, it is without doubt, incumbent upon him to show that his case falls within the terms of the statute. Has the defendant in the case at bar shown this ? We are apprehensive that he has not. While it is not stated in the abstract that the information, which resulted in the conviction of the defendant, was filed at the May term of court, it does appear that it was filed on May 21, 1898, that the defendant was arraigned “August 15, 1898, May term,” and a plea of “not guilty ” entered, and that the “ case was continued for the term.” The session of court of August 15, when the arraignment was had, was simply an adjournment of the May term, in accordance with Sec. 674, R. S., and it is therefore evident that the information was filed and the defendant arraigned at the May term. The trial occurred at the September term, 1898, which was the next tei’m after the one at which the information was filed. It is thus clear that the defendant was not entitled to be discharged under the statute, and that the court did not err in denying the motion.

It is also contended that the verdict is contrary to, and is not supported by the evidence. In answer to this con *481 tention, it is sufficient to say that there is evidence in the record which tends to connect the defendant with the crime for which he was convicted, and it supports the verdict. This being so, we have no power to determine whether or not, in our judgment, such evidence is sufficient to warrant a conviction. We can only interfere when there is no evidence to support the verdict.

The judgment is affirmed.

.-Minee, J., and Baskin, J., concur.