Proceeding upon defendants' motion to dismiss indictments. The Superior Court, Layton, J., held that, where defendants, who were arrested February 28, 1953, which was the Saturday before the March term began, and who were indicted and arraigned at May term, consented to postponement of trial until June 23, and State was not negligent but had made every effort to secure missing prosecution witnesses, continuance until September term on condition that, if not brought to trial then, defendants would be discharged was not oppressive, arbitrary, or capricious.
[48 Del. 191] Vincent A. Theisen, Chief Dep. Atty. Gen., for the State.
Frank O'Donnell, of Berl, Potter & Anderson, Wilmington, for defendants.
Defendants were arrested February 28, 1953, indicted and arraigned at the May Term (the first week in May) and counsel was thereafter appointed to represent them. At the beginning of the week set aside for criminal trials, the State requested a continuance because of its inability to locate two material witnesses. Counsel for defendants did not object provided the case could be tried at that Term. Accordingly, it was set for trial on June 23. The day prior to that date, the State moved again for a continuance to the September Term because of its inability to have present the same two material witnesses. It appeared that all reasonable efforts had been made to find these witnesses including [48 Del. 192] the use
of the police teletype systems in the two States of their respective residences, Maine and New Jersey. The State was prepared for trial but obviously unable to proceed for the reasons given. At that time, Walker and Funnie were already in jail serving sentences on other convictions which would not expire until late August. The September Term opened on September 21, less than one month later. Counsel for defendants objected to a further continuance. After consideration, I discharged one defendant, Shelton, from prison, placed him on bail on his own recognizance and continued the cases until the September Term. Defense counsel promptly filed a motion to dismiss the indictments against the remaining defendants upon two grounds, Title 10, § 6910, Delaware Code of 1953, and Article I, § 7 of the Constitution of this State. Section 6910, insofar as material here, reads:
‘ If such prisoner shall not be indicted and tried at the second term after his commitment, he shall be discharged from prison.’
I interpret this language as dealing, not with the dismissal of indictments but discharge from prison.
In the alternative, defendants insist that, from the facts above outlined, they have not been accorded a speedy trial within the meaning of Article I, § 7 of the State Constitution which reads:
‘ In all criminal prosecutions, the accused hath a right to * * * a speedy and public trial by an impartial jury * * *.’
In Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950, the Supreme Court of the United States in [48 Del. 193] interpreting a similar provision of the Federal Constitution, said this:
‘ The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’
A disposition of such a question, then, calls for a nice balancing between the public interest ...