Ex Rel EUBANKS vs. COLE, District Judge.

Proceeding in Mandamus.

Case No. A-752.

Denied

1. The Criminal Court of Appeals has jurisdiction and power to issue the Writ of Mandamus, directed to an inferior court, in the exercise, or in aid of its appellate authority, where the same is a proper proceeding in a Criminal cage.

2. A mandamus to an officer is said to be the exercise of original jurisdiction, but a mandamus to an inferior court is in the nature of appellate jurisdiction.

3. When a criminal trial has been arbitrarily postponed, without cause or by reason of prejudice or personal hostility, the court has refused to take any action, or where the case is beyond the exercise of judicial discretion, or where there is flagrant violation of a constitutional right; or the trial court is without jurisdiction; our constitution and laws afford a remedy either by Habeas Corpus, if the accused is in custody, or by mandamus where the accused has been admitted to bail.

4. A peremptory writ of mandamus will be denied where the relator has a plain and adequate remedy in the ordinary course of the law, and in no case will the writ issue. to control judicial decretion.

5. Sec. 20 of the Bill of Rights provides that: "In criminal prosecutions the accused shall have the right to a speedy and public trial."

Sec. 7047 Snyder's Sts, provides: "If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.'

The statute constitutes a legislative construction or definition of the constitutional provision.

6. The relator was indicted at the October 1909 term of the District Court, which term ended February 4th, 1910. On February 8th, a special term of said court was convened with a special judge, at the instance and request of relator, for the purpose of hearing his motion to quashi said indictment. Another special term of said District Court was convened on the 28th day of February 1910, with a special judge. On March 7th, 1910, was convened the next regular term, which term was to continue until May 31st, 1910. The legislature in extra session by act of March 25th, 1910 provided that the regular term of said District Court should commence on the first Monday in January, May and October each year. The defendant on April 30th, moved that the case be dismissed for reason that he had not been brought to trial, at either of said terms, and that the trial had not been postponed upon his application.

HELD, That the motion to dismiss was properly overruled; that relators substantial rights were not disparaged, and his constitutional right to a speedy trial was not violated. That the law enacted and becoming effective while the March term of said District Court was being held operating to terminate said term April 30th, was good and sufficient cause for not trying the relator during said March term.

7. A defendants constitutional right to a speedy trial is not contravened by continuances in the discretion of the presiding Judge, as to a day later in the term, or by hearing civil cases in advance of Criminal cases, or by delay necessited by the law itself.

8. The "next term of the Court", within the meaning of Section 7047 Snyder's Statutes, refers to and means the next regular term of the court as distinguished from a special term held for a special purpose.

STATEMENT OF FACTS.

The petitioner, Ira N. Eubanks, on May 3rd. 1910, filed in this court his verified petition for a mandamus, which omitting the formal parts reads as follows:

"Comes now Ira N. Eubanks and respectfully shows to

the court that he stands charged by indictment with the offense of forgery in the district court of Pittsburg County Oklahoma, said cause being No. 686 on the Criminal Docket of said court. That the Hon. Preslie B. Cole is the duly elected, qualified and acting judge of the fourth judicial district of the State of Oklahoma.

That the indictment in said cause was returned into court by the grand jury of Pittsburg County on the 29th day of Nov. 1909, the same being one of the regular judicial days of the October, 1909 term of said court; that said term of court expired on the 4th day of Feb., 1910; that the next term of said court began on the 8th day of Feb., 1910, and continued for two days thereafter, and that the next term of said court being on the 28th day of Feb., 1910, and continued for two days thereafter, and that the next term of said court began on the 7th day of March, 1910, and continued until April 30th, 1910.

That on the 7th day of March, 1910, the petitioner was arraigned and pleaded not guilty to the indictment.

That this cause was set for trial for the 21st day of March, 1910, the same being one of the regular judicial days of the March, 1910 term of the said court.

On which last named date the petitioner was presentin said court, said court then being in open session, ready, willing and waiting for trial.

That on the 7th day of March, 1910, after the usual motion hour, after petitioner had been arraigned, and when petitioner was not present, the respondent, while presiding as judge of said court, stated to the petit jurors then present that the court fund of Pittsburg county was exhausted, that the certificates for jurors, services would be discounted by the banks 20 per cent if they were asked to cash them, that he would leave it to the jurors to decide if they were willing to serve under these conditions, and if they were not he would dispense with their services; that the jurors then organized and took a vote as to whether they would serve or not, and a majority voted "No,' which vote was thereupon reported to the court whereupon the following order was by the court entered of record. "Now on this day it appearing to the honorable court

that there is no money in the county treasury with which to pay jurors and witnesses and that banks are discounting certificates twenty per cent and petit jurors having decided not to serve for the reasons above stated.

It is therefore ordered by the court that the petit jurors heretofore empanelled on this date be and they are hereby discharged from further service at this term and that all witnesses heretofore subpoenaed in criminal cases be and they are hereby discharged until further orders of this court or by notice of the county attorney to said witnesses."

Whereupon the ruspondent publicly announced that there would be no criminal cases tried during that term of the court. That the county attorney of Pittsburg county was present and agreed to the discharge of the jurors and witnesses and to the announcement as aforesaid.

That on or about the 25th day of March, 1910, the respondent made arrangements with the McAlester, Trust Company whereby the Company agreed to take up the certificates at 10 per cent discount, whereupon the respondent directed that a jury be drawn and summoned to appear on April 4th, 1910. That said jury duly drawn and summoned, appeared on said 4th day of April, 1910, and was empanelled, and the court and jury proceeded to try civil causes until the 14th day of April, 1910, and which time the jury was discharged.

That during the March, 1910 term of said court, the respondent was on the bench in the transaction of the business of the court only thirty days, twelve days during the month of March, and eighteen days during the month of April, leaving 16 days which might have been used as judicial days during which no business was transacted by said court. That at no time during said term of court did the state make any effort to bring your petitioner to trial on the said cause; that at no time during the said term was the court occupied in the hearing or trial of criminal cases. That the criminal docket, as set by the county attorney for said term of court of March, 1910, was set to cover a period of twelve days; that during

said term of eight judicial days there were no criminal causes tried or called for trial in said court. That your petitioner has at no time applied for or agreed to a postponement of the trial of said cause but has at all times been ready and willing for and awaiting trial thereon.

That on the 29th day of April, 1910, the same being one of the regular judicial days of March, 1910 term of said court, your petitioner filed his motion in said court to dismiss said cause No 636, because he had not been granted a speedy trial on said charge, a copy of which motion is hereto attached, marked exhibit "A" and made a part hereof.

That at the time of filing said motion your petitioner requested that the court hear same or set a time for the hearing thereof, but that respondent failed and refused to hear said motion and failed and refused to get same down for hearing, but stated that he would not hear samə but would leave it for another judge to pass on and determine, which statement and which refusal the respondent refused to enter of record; that later during the day your petitioner urged upon the respondent to pass upon said motions immediately or to set an immediate time therefor, Petitioner stating as his reason for such request that said cause was set for trial at an early date, to-wit, on May 12th, 1910, and that petitioner desired in the event that said motion shouid be ruled on adversely to the Criminal Court of Appeals for relief by proceedings in mandamus, but that respondent again refused to pass on said motions.

That said motion had been filed in open court and copy thereof had been duly delivered to the county attorney of Pittsburg county on the said 29th day of April, 1910; that under the publishing rules of the district court of Pittsburg county, Saturday, April 30th, was regular motion day in said court and all motions pending stood regularly for hearing on said day; that there had been no showing or purported showing made in response to said motion and that there had been no response at all made to same by the State or anyone else; that respondent was under the rule of said court hearing motions on