Summary
In State v. Ingram, 199 Kan. 16, 427 P.2d 500, and in In re Garner, 134 Kan. 410, 5 P.2d 821, we refused to discharge a defendant and gave significance to the failure of the defendant to request a trial, along with other facts. The obligation to bring a defendant to trial within the time provided by statute is on the State, and the defendant is not required to take any affirmative action.
Summary of this case from State v. SandersOpinion
No. 44,611
Opinion denying motion for rehearing filed May 11, 1967.
Appeal from Wyandotte district court, division No. 4; WILLIAM H. McHALE, judge. Opinion denying motion for rehearing filed May 11, 1967. (For original opinion see State v. Ingram, 198 Kan. 517, 426 P.2d 98.)
Clifford T. Mueller, of Kansas City, appeared on Appellant's Motion for Rehearing.
OPINION DENYING REHEARING
The opinion of the court was delivered by
The appellant has filed a motion for rehearing. We have considered the motion and find no issues which were not fully considered in the original case. The motion for rehearing is therefore denied.
However, appellant contends we did not give consideration to K.S.A. 62-1301 in determining whether he was granted a speedy trial. The point was so obviously without merit that we did not give it specific attention. That part of K.S.A. 62-1301 applicable here provides:
". . . If the defendant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause."
The term during which appellant was informed against was passed for cause. The information was filed July 8, 1965, and no jury cases are tried in Wyandotte County during the heat of the summer term. Also, appellant made no request for trial during such term and no complaint can be made of failure to have a trial at the term the information is filed unless so requested. ( In re Garner, 134 Kan. 410, 412, 5 P.2d 821; State v. Aspinwall, 173 Kan. 699, 708, 252 P.2d 841.) Furthermore, it appears from the record and the statement of appellant's one-time counsel that appellant took an active part in having the trial of the case delayed.
APPROVED BY THE COURT.