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Docket Number

[No. 69, October Term, 1949.]

Attorney(S)

Joseph Kadans for the appellant. Harrison L. Winter, Assistant Attorney General, with whom were Hall Hammond, Attorney General, and A. Gwynn Bowie, State's Attorney for Prince George's County, on the brief, for the appellee.

Judges

GRASON, J., delivered the opinion of the Court.

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Smart Summary

Summary of Opinion: Harris v. State, Court of Appeals of Maryland (Decided Jan. 12, 1950; Rehearing denied Feb. 14, 1950)

Factual and Procedural Background

Ronald Harris was jointly indicted by the Prince George's County grand jury on April 12, 1944, on five counts, the first charging robbery. At the time of the indictment he was confined in the Maryland Penitentiary under process of a Maryland court. The case was stetted on May 1, 1944. Over the ensuing years Harris remained in the penitentiary.

Correspondence from the State's Attorney in December 1947 and February 1949 informed Harris that it was not the county's practice to try incarcerated defendants until they were returned to the jurisdiction and that a necessary prosecuting witness was temporarily unavailable. In March 1949 Harris petitioned Judge John T. Tucker (who directed him to send the petition to a judge of the Seventh Judicial Circuit). On April 29, 1949, Harris's petition was filed in the Circuit Court for Prince George's County; Judge John B. Gray, Jr. ordered the State's Attorney to inquire into the whereabouts and availability of the prosecuting witness so the case could be tried expeditiously. Judge Charles C. Marbury had also issued a show-cause order earlier in March 1949 and, after Harris filed a writ of mandamus in the United States District Court seeking to require the State's Attorney to order an immediate trial, Judge Marbury stayed proceedings pending resolution of that federal mandamus action. The federal proceedings were dismissed and a subsequent federal appeal was abandoned.

The State located the prosecuting witness and the case was assigned for trial on July 5, 1949. Harris was produced by the penitentiary warden pursuant to a writ of habeas corpus ad testificandum. On July 5, 1949, Harris, through counsel, filed a motion to quash the indictment on three grounds: (1) he had not been sufficiently informed of the charges (no copy of the indictment furnished and never read to him); (2) prosecution was barred because of delay and denial of his right to a prompt and speedy trial; and (3) key defense witnesses were deceased or unlocatable. The motion to quash was overruled by Judge Charles C. Marbury. On July 18, 1949, Harris appealed the denial of the motion to quash to the Court of Appeals of Maryland. The Court of Appeals affirmed the order overruling the motion to quash, taxed costs against Harris, and remanded the case for further proceedings.

Legal Issues Presented

Whether an appeal lies from the trial court's denial of a motion to quash the indictment when a prisoner claims he was denied a speedy trial and seeks to be freed from further proceedings.
Whether the Sixth Amendment to the U.S. Constitution or Article 21 of the Maryland Declaration of Rights applied to Harris's claim and, if so, whether Harris was denied the right to a speedy trial under the facts of this case.
Whether an incarcerated defendant must make an affirmative demand for a speedy trial (and whether failure to do so constitutes waiver) when accused while confined under a prior state conviction.

Arguments of the Parties

Appellant's Arguments

Harris (through counsel) asserted in his motion to quash that he had not been sufficiently informed of the charges (no copy of the indictment furnished and the indictment had not been read to him).
He argued prosecution was barred because the indictment (returned April 1944) had not been acted upon for several years — a delay contrary to Maryland law and the Fourteenth Amendment — and thus his right to a prompt and speedy trial was violated.
He asserted prejudice from the delay because an important witness for the defense (his brother William Harris) had died and other defense witnesses had become unlocatable.
Counsel also suggested applicability of the Sixth Amendment to the federal Constitution in support of the speedy-trial claim.

Appellee's (State's) Arguments

The State moved to dismiss the appeal on the ground that the denial of a motion to quash is ordinarily not a final judgment and thus not appealable.
The State contended the court record contained no proof that Harris had made timely demands for a prompt trial; the only written communications in the record were letters from the State's Attorney.
The State pointed to delay caused by the proceedings Harris initiated in federal court (the mandamus action) as a reason the State's actions were delayed and beyond the defendant's proper basis to complain about delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Haas, 188 Md. 63, 51 A.2d 647	General rule that an appeal will not lie from a judgment that is not final.	Used to introduce the general finality principle; the Court then explained an exception when a prisoner claims a speedy-trial denial entitling him to be freed and the claim is decided against him.
State v. Archer, 73 Md. 44, 20 A. 172	Analogy that sustaining a demurrer to an indictment is a final ruling (thus appealable).	Cited to support the Court's conclusion that denial of a motion to quash, when it amounts to a final ruling on a claimed right to be freed from further proceedings, is appealable.
Palko v. State of Connecticut, 302 U.S. 319	That criminal proceedings involving basic or fundamental rights flow through the Fourteenth Amendment's due process clause and can be reviewed by the U.S. Supreme Court.	Quoted to explain the incorporation concept: only violations of basic/fundamental rights are absorbed into federal process under the Fourteenth Amendment; the Court then assessed whether such a basic right was implicated here.
Wolf v. People of State of Colorado, 338 U.S. 25	Authority on the incorporation/ due process review of state criminal proceedings involving fundamental rights.	Used with Palko to support the statement that basic rights in state criminal proceedings can be reviewed federally under the Fourteenth Amendment when such rights are implicated.
Raine v. State, 143 Tenn. 168, 226 S.W. 189	Authority cited concerning the incorporation/forced protection of fundamental rights and related principles.	Included among authorities explaining incorporation and general guiding principles on fundamental rights in criminal proceedings.
22 C.J.S., Criminal Law, § 467	Text authority addressing speedy-trial rights and related doctrines.	Used to support the discussion that sovereigns may not deny speedy trials to incarcerated persons and other related speedy-trial principles.
State v. Schnell, 107 Mont. 579, 88 P.2d 19; 121 A.L.R. 1082	Authority for the proposition that constitutional speedy-trial guarantees are self-executing.	Applied to the Court's conclusion that the Sixth Amendment and Article 21 are self-executing even absent legislative implementation.
People v. Foster, 261 Mich. 247, 246 N.W. 60	Authority for the proposition that constitutional speedy-trial guarantees are self-executing.	Used alongside other authorities to support the statement that both the Sixth Amendment and Maryland Article 21 are self-executing.
118 A.L.R. 1037	Statement of general rule that a sovereign may not deny an accused a speedy trial even if incarcerated under prior state conviction.	Relied upon to state the general rule that incarcerated defendants are entitled to speedy trials and that many states follow this rule.
State v. Miller, 72 Wn. 154, 129 P. 1100	Discussion distinguishing statutory mandates from constitutional privileges and asserting that failure to demand a trial may operate as a waiver.	Quoted and used as part of the body of authority supporting the Court's adoption of the rule that an incarcerated person must demand a speedy trial and that failure to do so waives the right.
Harris v. Ogden, 44 Okla. Cr. 418, 281 P. 316	Authority cited among state cases supporting waiver/demand rule.	Included in the line of state decisions the Court cited in adopting the rule that failure to demand a speedy trial constitutes a waiver by the incarcerated defendant.
Ex parte Van Garner, 134 Kan. 410, 5 P.2d 821	Authority cited in the discussion of waiver and demand requirements under statutes and constitutional provisions.	Part of the supporting authorities cited in adopting the demand/waiver rule for incarcerated defendants.
State v. McTague, 173 Minn. 153, 216 N.W. 787	Case quoted at length for the proposition that speedy-trial provisions protect defendants who claim them and that an accused must demand trial, resist postponement, or otherwise show effort to secure speedy trial.	The Court quoted McTague and relied on it to emphasize that speedy-trial provisions are for the benefit of defendants who claim them and that a defendant must take steps to assert the right.
129 A.L.R. 587	Annotation cited concerning cases and authorities on waiver and demand for speedy trial.	Used as additional supporting authority for the rule that delay caused by the accused cannot be complained of and that the right is personal and waivable.
Shepherd v. United States, 8 Cir., 163 F.2d 974	Federal authority stating that delays caused by the accused cannot be complained of and that the right to discharge for lack of speedy trial is personal and waivable.	Cited to show the federal counterpart of the rule that an accused must assert and demand his right to a speedy trial; federal cases support the same principle.
Pietch v. United States, 10 Cir., 110 F.2d 817; cert. denied 310 U.S. 648	Federal appellate authority on presumption of acquiescence to delay absent an affirmative request for trial.	Used among federal cases cited to support the Court's conclusion that absence of an affirmative demand for trial suggests acquiescence in delay.
Daniels v. United States; O'Brien v. United States; Poffenbarger v. United States	Additional federal cases cited that support related principles regarding demand, waiver, and presumption of acquiescence to delay.	Cited as part of the federal authority aligning with the Court's adoption of the demand/waiver principle.
Rigor v. State, 101 Md. 465, 61 A. 631	Statement that the penitentiary is not a place of sanctuary and an incarcerated convict should not enjoy immunity from trial because of incarceration.	Quoted to reinforce the proposition that incarceration does not immunize a defendant from prosecution or trial.
Ponzi v. Fessenden, 258 U.S. 254	Authority cited concerning the principle that incarceration is not sanctuary and related points.	Used to support the statement that a prisoner in a penitentiary is not immune from trial and prosecution while incarcerated.

Court's Reasoning and Analysis

The Court proceeded in a series of analytic steps, applying legal principles to the facts in the record:

Finality and Appealability: The Court recognized the general rule that appeals do not lie from non-final judgments (citing State v. Haas) but explained an exception: when a prisoner contends he has been denied a speedy trial and, as a result, claims entitlement to be freed from further proceedings, the denial of that claimed right (if decided against him) constitutes a final ruling from which an appeal will lie (analogized to sustaining a demurrer to an indictment; State v. Archer).
Incorporation and Fundamental Rights: The Court acknowledged the incorporation doctrine (Palko; Wolf): when state criminal proceedings implicate basic or fundamental rights, the Fourteenth Amendment's due process clause brings those proceedings within federal review. However, the protection through the Fourteenth Amendment applies only where a basic or fundamental right has been violated.
Self-Executing Nature of Speedy-Trial Guarantees: The Court stated that both the Sixth Amendment and Maryland's Article 21 are self-executing, citing state and other authorities (State v. Schnell; People v. Foster). Thus, the constitutional speedy-trial provisions do not depend entirely on implementing statutes to be operative.
General Rule Regarding Incarcerated Defendants: The Court recognized the general rule that a sovereign may not deny an accused a speedy trial even though he is incarcerated under a prior state conviction (citing 118 A.L.R. 1037 and C.J.S.).
Demand/Waiver Rule Adopted and Applied: After reviewing a line of state and federal authorities (e.g., State v. Miller; State v. McTague; Shepherd v. United States; Pietch and other federal cases), the Court adopted the rule that an incarcerated defendant must make an affirmative demand for a speedy trial; failure to do so operates as a waiver of the right. The Court emphasized that the right to a speedy trial is a personal right intended to protect a prisoner against long delay, but it must be asserted by the prisoner.
Application to the Record: Applying this rule to Harris's record, the Court observed that the record contained no clear proof that Harris had made timely and affirmative demands for immediate trial until nearly five years after indictment. The only letters in the record were from the State's Attorney indicating customary practice (not to try incarcerated defendants until returned) and the unavailability of a witness. There was only an "intimation" in one letter that a request for trial had been made. The Court also found that delay was in part caused by Harris's own federal mandamus proceedings, which stayed state proceedings. When Harris ultimately sought relief from the state circuit court, the court ordered steps to secure the witness and set the case for trial. Given these facts, the Court concluded there had been no denial of Harris's right to a speedy trial.
Penitentiary Is Not Sanctuary: The Court reiterated established authority (Rigor v. State; Ponzi v. Fessenden) that incarceration does not immunize a defendant from trial; a prisoner must not be permitted to avoid prosecution merely by virtue of confinement.

Holding and Implications

Holding: The Court affirmed the trial court's order overruling the motion to quash the indictment, assessed costs against the appellant, and remanded the case for further proceedings.

Implications (direct consequences and doctrinal effect):

Direct effect on the parties: Harris's motion to quash was denied; he was not discharged from prosecution, and the case was returned to the trial court for continued proceedings consistent with the ruling.
Doctrine adopted by the Court: The Court explicitly adopted the rule, supported by state and federal authorities, that an incarcerated defendant must make an affirmative demand for a speedy trial; failure to do so constitutes a waiver of the right to a speedy trial. The Court applied that rule to the facts and found no denial of Harris's speedy-trial right.
Appealability principle clarified: The Court reaffirmed that while denial of a motion to quash is ordinarily non-final, when a prisoner asserts a speedy-trial claim entitling him to be freed and that claim is decided against him, the ruling is final for purposes of appeal.
No finding that a new, broader federal constitutional rule was created: the Court treated incorporation and fundamental-rights principles as background but determined on these facts that the federal Sixth Amendment and Maryland Article 21 did not provide relief to Harris because he had not affirmatively asserted the right in a timely way and delay was in part caused by his own actions.

This summary is drawn exclusively from the text of the provided opinion and does not add facts or interpretations beyond what the Court stated in its written opinion.

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HARRIS v. STATE

Criminal Law — Constitutional Law — Criminal Proceedings Arising in State Court — Flow Through Due Process Clause of 14th Amendment to U.S. Constitution If Basic Rights Involved — Will Be Reviewed by Supreme Court — Denial of Speedy Trial — Both Art. 21 of Md. Declaration of Rights and 6th Amendment to U.S. Constitution Self-Executing — Right to Speedy Trial — May Not Be Denied By Sovereign to Accused Person Even Though Accused Incarcerated in One of Sovereign's Penal Institutions under Prior Conviction and Sentence in Sovereign's Court — Right Is a Personal One — Intended By Declaration of Rights to Protect Prisoner Against Long Delay in Trial of Crime Charged Against Him — Duty of Such Person to Demand Speedy Trial — Failure to Demand Such a Trial Is a Waiver of Right to Speedy Trial — Under Facts of Case Neither 6th Amendment to U.S. Constitution nor Art. 21 of Md. Declaration of Rights Applies — Under Facts No Denial of Right to Speedy Trial — Appeal — Motion to Quash — Ordinarily Denial Thereof Not a Final Judgment and Appeal Will Not Lie from Judgment That Is Not Final — But Where Prisoner Claims He Has Been Denied Speedy Trial, and Has Thereby Become Entitled to Be Freed of Further Proceedings, and Claim Decided Against Him, This Is a Final Ruling Denying His Claimed Right from Which an Appeal Lies.

While an appeal will not lie from a judgment that is not final, and ordinarily denial of a motion to quash is not a final judgment, when a prisoner claims that he has been denied a speedy trial and has thereby become entitled to be freed of further proceedings in a case, and his claim is decided against him, this is a final ruling denying his claimed right, from which an appeal will lie. p. 294

Criminal proceedings arising in a State court, involving basic or fundamental rights, flow through the due process clause of the Fourteenth Amendment to the Constitution of the United States, become absorbed in federal process, and will be reviewed by the Supreme Court of the United States. p. 295

Where appellant was confined in the Maryland Penitentiary at the time he was indicted, and there was nothing in the record to show that any demands were made for a prompt trial under the indictment, except an intimation in a letter written to appellant by the State's Attorney that a trial had been requested, neither the Sixth Amendment to the Constitution of the United States, which provides that the accused in all criminal proceedings shall have the right to a speedy and public trial, nor Article 21 of the Maryland Declaration of Rights, providing that a man has the right to a speedy trial, has any application under the facts. p. 295

The Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights are both self-executing. p. 295

A sovereign may not deny an accused person a speedy trial even though he is incarcerated in one of that sovereign's penal institutions under a prior conviction and sentence in a court of that sovereign. p. 296

Where an incarcerated person moves for the quashing of an indictment pending against him on the ground that he had been denied a speedy trial, it is the duty of the incarcerated person to demand a speedy trial of an indictment pending against him in any of the courts of this State, and if he fails to demand such a trial he waives his right to a speedy trial. p. 297

The right of an accused to a speedy trial is a personal right; it is intended by the Declaration of Rights of this State to protect a prisoner against long delay in the trial of a crime charged against him — but he must demand a speedy trial. p. 297

In the case at bar appellant filed a motion to quash an indictment pending against him on the ground that he had been denied a speedy trial. He was confined in the Maryland Penitentiary at the time the indictment was returned. He made no application to a judge of the circuit court where the indictment was returned for nearly five years after he was indicted, at which time action was taken to give him a prompt trial. The only evidence of any demand on appellant's part for an immediate trial was an intimation in a letter written to appellant by the State's Attorney that a request for trial had been made. Delay was caused when appellant filed a writ of mandamus in the United States District Court for the District of Maryland to require the State's Attorney to order immediate trial of the case, and on application of counsel for appellant the case was continued after the motion to quash the indictment was filed and overruled. Under the facts of the case it was held that there had been no denial to appellant of a right to a speedy trial, and the order of the lower court overruling the motion to quash the indictment was affirmed. pp. 291-299

J.E.B.

Decided January 12, 1950.

Rehearing denied February 14, 1950.

GRASON, J., delivered the opinion of the Court.

Ronald Harris was jointly indicted with two other men by the grand jury for Prince George's County on April 12, 1944. The indictment consisted of five counts, the first of which charged robbery. At the time this indictment was returned against him he was confined in the Maryland Penitentiary, and still is confined in that institution under process of a court of this State. On May 1, 1944, the case was stetted. On December 29, 1947, Mr. Bowie, the State's Attorney for Prince George's County, wrote as follows:

"Your letter of December 18, 1947, addressed to Honorable William C. Coleman has been forwarded to me by Mr. Bernard J. Flynn, U.S. Attorney, for reply.

"With respect to your statements that various letters addressed by you to officials of Prince George's County have been ignored, I can only say that insofar as this office is concerned we have no record of having received any communication from you.

"In reply to your request for information concerning trial of the case pending against you in this jurisdiction, you are advised that in cases in which the defendants are already confined it has not been the practice in this County to bring the cases up for trial until the defendants are returned here. When you are returned to this jurisdiction your case will be promptly disposed of."

On February 17, 1949, Mr. Bowie wrote Harris:

"In reply to your letter to me of February 15th, you are advised that a necessary witness for the State in the case pending against you here is not available at this time and, for this reason, I am unable to comply with your request that the case be brought to trial now."

Subsequently Harris petitioned the Honorable John T. Tucker, a member of the Supreme Bench of Baltimore City, and on March 4, 1949, Judge Tucker wrote him that he had no jurisdiction in the matter and suggested that he send the petition to one of the judges of the Seventh Judicial Circuit, which comprises Prince George's County, and gave him the names and addresses of the judges of that Circuit.

On April 29, 1949, the petition which Harris sent to Judge Tucker was filed in the Circuit Court for Prince George's County, and on the same day Judge John B. Gray, Jr., filed an order in the case in which he directed the State's Attorney "to make inquiry as to the whereabouts of the prosecuting witness, when he will be available for trial, and communicate his findings to the Court so that the case may be brought to trial as expeditiously thereafter as is practical". It is stated in the order: "The Court has inquired of the State's Attorney concerning the feasibility of promptly trying the above entitled cause. We are informed that Calvin Brady, the supposed victim of the alleged robbery, is now in the armed service of the United States, not available to testify at this time, and that his testimony is essential at the trial of this case. * * * Inasmuch as this application has been made some five years after the indictment it is only proper that the State's Attorney be afforded a reasonable opportunity to procure the attendance of the necessary witnesses."

The State's Attorney found the prosecuting witness and the case was assigned for trial on July 5, 1949. The warden of the penitentiary, in pursuance of a writ of habeas corpus ad testificandum, produced Harris in court that day. On that day the prisoner, through his counsel, filed a motion to quash the indictment, which was overruled. On application of counsel for the prisoner the case was continued to August 5th, 1949, at 10 A.M., and on July 18, 1949, an appeal was taken from the order of Judge Charles C. Marbury overruling the motion to quash to this court. It further appears that Judge Charles C. Marbury passed an order on the 14th day of March, 1949, in which the State's Attorney was required to show cause on or before the 24th day of March, 1949, why Harris should not be granted an immediate trial.

On the 16th day of March, 1949, Harris filed a writ of mandamus in the United States District Court for the District of Maryland to require the State's Attorney to order immediate trial of the case herein involved, and on the 17th day of March, Judge Charles C. Marbury passed an order staying the proceedings in this case until after the petition for a writ of mandamus filed in the United States District Court was determined. The proceedings in the United States District Court were dismissed and an appeal taken, which was subsequently abandoned.

While it is stated by the prisoner and his attorney that communications were sent to the officials of Prince George's County demanding a prompt trial under the indictment returned in April, 1944, there is nothing in the record to show that any such demands were made. The only two letters in the record are those written by the State's Attorney to Harris, referred to. The record of the proceedings before Judge Charles C. Marbury on July 5, 1949, contains no testimony. There were no witnesses sworn. It consists of a general discussion between the Judge, Mr. Kadans, counsel for the prisoner, and the Assistant State's Attorney. The letter written on May 27, 1949, to Judge Charles C. Marbury by Mr. Kadans is intended to be a legal argument, and Judge Charles C. Marbury's letter of June 1, 1949, to Mr. Kadans sets out what actually had been done in the case as of that date. These letters are in the record. The motion to quash is as follows:

"Now comes Ronald Harris, by Joseph Kadans, his Attorney and moves that the criminal indictment now pending against Ronald Harris be quashed and dismissed for the following reasons:

1. The defendant, Ronald Harris, has not been sufficiently informed of the charges pending against him. He has never been furnished with a copy of the indictment, nor has the indictment ever been read to him.

2. Prosecution at this time is barred. The Constitution of Maryland provides for a prompt and speedy trial. The defendant was indicted at the April 1944 term of the Grand Jury of Prince George's County. The whereabouts of the defendant were known to the State's Attorney for Prince George's County for several years; nevertheless, although the authorities could easily have done so, the prosecution was not activated until June of 1949, after considerable effort was made by the defendant to have the matter disposed of. Trial at this late date would be contrary to the Maryland law and the 14th Amendment to the United States Constitution.

3. An important witness needed by the defendant is now deceased. William Harris, brother of the defendant, who was familiar with the whereabouts of the defendant at the time of the alleged crime, died April 10, 1948. Other important witnesses needed to establish the alibi of the defendant have now moved and cannot be located."

The State filed a motion to dismiss the appeal, contending that the appeal was not taken from a final judgment. While it is perfectly true that an appeal will not lie from a judgment that is not final ( State v. Haas, 188 Md. 63, 51 A.2d 647), and ordinarily denial of a "motion to quash" is not a final judgment, on the other hand it is just as true that when a prisoner claims that he has been denied a speedy trial and has thereby become entitled to be freed of further proceedings in a case, and his claim is decided against him, this is a final ruling denying his claimed right, from which an appeal will lie. This appeal may be compared to the sustaining of a demurrer to an indictment, which is a final ruling. The State can appeal, and if the judgment is reversed the case will be remanded for further proceedings. State v. Archer, 73 Md. 44, 20 A. 172.

Counsel for appellant seems to think that the Sixth Amendment to the Constitution of the United States has application to the case at bar. That amendment, among other things, provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, * * *."

Article 21 of the Maryland Declaration of Rights provides, among other things, that a man has a right "to a speedy trial by an impartial jury, * * *."

There was never a doubt, from the time of the adoption of the first ten amendments to the Constitution of the United States until the adoption of the Fourteenth Amendment, that the first eight amendments applied to and limited the powers of the Federal government, but were not applicable to the States. When the Fourteenth Amendment to the Constitution of the United States was passed, the first section thereof, among other things, provided: "nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *." Since the adoption of that amendment, it has been held that cases involving a violation of a basic or fundamental right will be protected under the due process clause of the Fourteenth Amendment; but such protection is only accorded a person where a basic or fundamental right has been violated. Criminal proceedings arising in a State court, involving such rights, flow through the due process clause of the Fourteenth Amendment, become absorbed in federal process, and will be reviewed by the Supreme Court. Palko v. State of Connecticut, 302 U.S. 319-329, 58 S.Ct. 149, 82 L.Ed. 288; Wolf v. People of State of Colorado, 338 U.S. 25, 93 L.Ed. 1782, 69 S.Ct. 1359; Raine v. State, 143 Tenn. 168, 226 S.W. 189; 22 C.J.S., Criminal Law, § 467.

We think, under the facts in this case, the Sixth Amendment has no application; nor do we think that Article 21 of the Maryland Declaration of Rights applies. The Federal government has not implemented the Sixth Amendment by statute, and neither has this State passed a statute under the 21st Article of the Maryland Declaration of Rights, but, nevertheless, each is self-executing. State v. Schnell, 107 Mont. 579, 88 P.2d 19, 121 A.L.R. 1082; People v. Foster, 261 Mich. 247, 246 N.W. 60.

Many of the States having similar constitutional provisions have statutes which provide a time limit in which a prisoner must be tried. The time limit varies in different States. The general rule is that "a sovereign may not deny an accused person a speedy trial even though he is incarcerated in one of that sovereign's penal institutions under a prior conviction and sentence in a court of that sovereign." 118 A.L.R. 1037; 22 C.J.S. supra.

This rule is followed in a majority of the States and in the Federal courts. See what is said to be a minority rule, 118 A.L.R. 1044. It has been said that there is a distinction between the mandate of a statute and the provision of a constitution. In State v. Miller, 72 Wn. 154, 129 P. 1100-1103, it is stated:

"The one is a statutory mandate; the other a constitutional privilege. The statute imposes upon the state the duty to bring the accused to trial within the 60 days. The state must take the initial action. The Constitution accords a right to the accused to a speedy public trial. If he does not demand it, he should not complain. Such is the rule under statutes not mandatory. `A demand for a trial, a resistance to a postponement, or some other effort to secure a speedy trial must be shown to entitle the accused to a discharge under the statute by reason of the delay of the prosecution.' 12 Cyc. 500. That a constitutional right may be waived by the accused has been repeatedly held by this court. (Authorities cited.) This court has also held that even the mandatory statutory provision is waived by a failure to ask for a dismissal until just before trial." (Authorities cited.) Harris v. Ogden, 44 Okla. Cr. 418, 281 P. 316; Ex parte Van Garner, 134 Kan. 410, 5 P.2d 821; Raine v. State, supra; State v. McTague, 173 Minn. 153, 216 N.W. 787; People v. Foster, supra; 129 A.L.R. 587; State v. Schnell, supra.

The case quoted from and the cases cited are supported by the weight of authority in this country, and we adopt the rule that in a case like the one before us it is the duty of the incarcerated person to demand a speedy trial of an indictment pending against him in any of the courts of this State, and if he fails to demand such a trial he waives his right to a speedy trial. This right is a personal right; and it is intended by the Declaration of Rights of this State to protect a prisoner against long delay in the trial of a crime charged against him, — but he must demand a speedy trial.

As was said in State v. McTague, supra [ 173 Minn. 153, 216 N.W. 788]:

"* * * We hold that these solicitous provisions are not to be used as offensive weapons, but are for the benefit of defendants who claim their protection. * * * There is no just reason why an accused should not demand a trial, resist a postponement, or take some action indicating to the court that he believes he is being deprived of his statutory or constitutional rights as a foundation for his application for a dismissal. The right to a speedy trial is valuable, and it will be zealously guarded by the courts with resolute courage. It is for the protection of personal rights, not to embarrass the administration of the criminal law nor to defeat public justice. It is a privilege to the accused. If he does not claim it, he should not complain. * * *"

The law, supported by the weight of State authority throughout the country, is the same that applies in Federal cases.

"Delays which have been caused by the accused himself can not, of course, be complained of by him. The right of the accused to a discharge for failure of the prosecution to give him a speedy trial is a personal one to him and may be waived. He must assert the right if he wishes its protection and if he does not make a demand for trial or resist a continuance of the case, or if he goes to trial without objection that the time limit has passed, or fails to make some kind of effort to secure a speedy trial, he will not ordinarily be in position to demand dismissal because of delay in prosecution, * * *." (See authorities cited.) Shepherd v. United States, 8 Cir., 163 F.2d 974-976.

"In the absence of an affirmative request or demand for trial made to the court it must be presumed that appellant acquiesced in the delay and therefore cannot complain." (Authorities cited.)

Pietch v. United States, 10 Cir., 110 F.2d 817-819, 129 A.L.R. 563, certiorari denied 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414; see: Daniels v. United States, 9 Cir., 17 F.2d 339-343, 334; O'Brien v. United States, 7 Cir., 25 F.2d 90-92; Poffenbarger v. United States, 8 Cir., 20 F.2d 42-45.

Notwithstanding the appellant was confined in the Maryland Penitentiary under process from a Maryland court, he could have applied to a judge of the Circuit Court for Prince George's County for a speedy trial. He did not do so for nearly five years after he was indicted. When he did apply to that court the court ordered the State's Attorney to make every effort to locate the prosecuting witness. This was done and his case assigned for trial on July 5, 1949. On that date the motion to quash the indictment was filed and overruled by the court, and on application of counsel for the accused the case was continued until the 5th of August, 1949. Delay in the case was caused by the proceedings filed in the Federal court, of which the appellant cannot complain. It has been said and reiterated by counsel that repeated applications were made by the appellant to the Prince George's County authorities for a trial. The only letters in the record are the two written by the State's Attorney, to which we have referred. There is an intimation that a request for trial was made, in the letter written to appellant by Mr. Bowie on February 17, 1949, and since that date all reasonable efforts have been made to have the case promptly tried. With this exception, there is nothing in these letters to show that the appellant asked or sought an immediate trial. While the State's Attorneys usually prepare criminal dockets, and assign dates for trial of cases, yet the judge can always take control and order a case assigned for trial. If the prisoner desired a speedy trial, application should have been made to the court, which had full power to grant relief. When application was made to Judge Gray and Judge Charles C. Marbury action was taken to give the accused a prompt trial.

The converse of this case is Rigor v. State, 101 Md. 465, 61 A. 631, 634, 4 Ann. Cas. 719, where Chief Judge McSherry said:

"The penitentiary is not a place of sanctuary, and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some earlier judgment of guilt." See Ponzi v. Fessenden, 258 U.S. 254, 255, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879.

Under the facts of this case we think there has been no denial to the appellant of a right to a speedy trial. The order of the court overruling the motion to quash the indictment is affirmed.

Order affirmed, with costs, case remanded for further proceedings.

HARRIS v. STATE

Summary of Opinion: Harris v. State, Court of Appeals of Maryland (Decided Jan. 12, 1950; Rehearing denied Feb. 14, 1950)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Appellee's (State's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

HARRIS v. STATE

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