September 17, 1941.
1. Syllabus Adopted. It being stipulated that this case should be governed by the decision in the case of Ex parte Meadows, 71 Okla. Cr. 353, 112 P.2d 419, the syllabus of Ex parte Meadows, supra, is adopted as the syllabus of this case.
2. Habeas Corpus — Remedy Where Right to Speedy Trial Denied. Habeas corpus is proper remedy where the defendant has been denied his constitutional right to a speedy trial.
3. Time of Trial and Continuance — Proper Procedure by Defendant Who Contends His Right to Speedy Trial Has Been Denied. Where the defendant contends that his right to a speedy trial as guaranteed by the statutes and Constitution has been denied, the proper procedure is to first present the matter to the trial court by a motion to dismiss; if the same is overruled, he may apply to this court in an original proceeding for a writ of habeas corpus or proceed to trial and reserve this question as one of the grounds for appeal from a judgment of conviction.
4. Same — Statute Providing for Dismissal of Prosecution Because of Delay in Trial Operative Only Where State Guilty of Some Laches. Section 2872, O. S. 1931, 22 Okla. St. Ann. § 812, providing: "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 or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown," operates only when there is some laches on the part of the state.
5. Same — "Good Cause for Delay in Trial." The determination of good cause for delay in the trial of an accused, as set forth in section 2872, O. S. 1931, 22 Okla. St. Ann. § 812, is a matter of judicial discretion to be determined by the particular circumstances of each case.
6. Same — Burden on Accused to Show Delay Was Fault of State. Where an accused contends that his right to a speedy trial has been denied, the burden is upon him to show that the delay was the fault of the state.
7. Same — Right to Speedy Trial Waived by Proceeding to Trial Without Objection. The right of an accused to a speedy trial may be waived, and is waived, by proceeding to trial without objection.
8. Same — Accused not Entitled to Discharge Because of Denial of Right to Speedy Trial Where on Plea of Guilty He Was Sentenced to Penitentiary and After Several Terms of Court Judgment Was Vacated on Writ of Habeas Corpus and Case Remanded for New Trial and Immediately Set for Trial. Where an accused enters a plea of guilty to an offense and is sentenced to serve a term in the penitentiary and later, after several terms of court have expired, procures a writ of habeas corpus, in which the judgment on his plea of guilty is vacated and the case remanded for new trial, and the case upon being remanded is immediately set for trial, the defendant is not entitled to his discharge because of the denial of his right to a speedy trial, as the delay has not been due to laches on the part of the state, and such facts constitute good cause under the statute for not having brought the accused to trial earlier.
9. Former Jeopardy — Remanding of Prisoner for Trial After Proceedings on Plea of Guilty Were Vacated not Subject to Objection That He Was Subjected to "Double Jeopardy." The remanding of a prisoner for trial, after proceedings upon a plea of guilty have been vacated, is not subject to the objection that he is put in jeopardy twice for the same offense.
Application by Glen Wilkerson for a writ of habeas corpus to secure his release from imprisonment in the county jail of Comanche County. Writ denied.
W. N. Redwine, of McAlester, for petitioner.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
This is an original application for writ of habeas corpus wherein the petitioner, Glen Wilkerson, alleges that he is unlawfully restrained of his liberty in the county jail of Comanche county at Lawton, Okla.
This is a companion case to the Meadows case, supra, as the said Clyde Meadows and the petitioner herein were jointly charged with robbery, were arrested at the same time, and all proceedings were had against them jointly.
This court in the case of Ex parte Wilkerson, 72 Okla. Cr. 301, 115 P.2d 923, followed the decision which was rendered in the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P.2d 139, and vacated the proceedings of the district court of Comanche county and remanded the petitioner to the custody of the sheriff of Comanche county to be held by him pending further proceedings against him. Subsequent to that opinion, this proceeding was instituted by the petitioner, who contends that he has been denied his right to a speedy trial and makes the same contention as was made by the petitioner, Clyde Meadows, in the case of Ex parte Meadows, 71 Okla. Cr. 353, 112 P.2d 419.
It is therefore ordered that the petition for habeas corpus be denied.