
    EX PARTE LOWRIE.
    Habeas Corpus — Prosecution postponing Triar. — A defendant in a criminal action who is not brought to trial at the next term of court after the finding of the indictment and at which it is triable, and whose trial has been postponed against his wish, is not entitled as a matter of right to be discharged on his own recognizance under Sec. 465 of the Code of Criminal Procedure of Utah Territory.
    Petition for discharge on a writ of habeas corpus. Tbe facts are stated in tbe opinion of tbe court.
    
      Mr. IS. B. Critohlow, for tbe petitioner.
    
      Mr. W. H. Dickson, contra.
   Boreman, J.:

It appears tbat on or about tbe fifteenth of November, 1884, tbe petitioner was arrested upon a criminal complaint charging him with tbe crime of enticing females of previous chaste character into a bouse of prostitution. After bearing, be was by tbe magistrate committed to await tbe action of tbe grand jury, and, in default of bail, was sent to jail.

By tbe next grand jury, on tbe twenty-first of February, 1885, be was indicted and warrant issued. On tbe twenty-seventb of February be was arraigned and pleaded “not guilty,” and demanded to be put immediately upon trial. Tbe cause was continued to tbe fourteenth day of March following, but was not reached when tbe day for tbe trial of civil cases arrived. Tbe civil cases occtrpied all tbe residue of tbe February term.

At tbe April term following, tbe trial of tbe case was set for tbe twenty-first of April. On tbe last named day, tbe counsel for tbe people asked and obtained continuance until tbe twenty-ninth day of April, on account of tbe absence of witnesses. Tbe cause was reached on tbe fourth of May, and again tbe counsel for tbe people moved for a further continuance, on tbe ground of tbe absence of witnesses. Tbe petitioner objected, and asked that tbe cause be set for trial at a later date in tbe same (April) term. Tbe court granted tbe motion of tbe counsel for tbe people.

Tbe petitioner then asked to be discharged upon bis own recognizance, but it was refused. His bail, however, was reduced to five hundred dollars. Tbe matter now comes to this court 'upon a writ of habeas corpus, for tbe discharge of the petitioner on bis own undertaking of bail to appear at tbe next term of tbe third district court.

Tbe petition alleges that certain criminal cases were tried at tbe February term, 1885, after bis indictment; that five of tbe six cases tried were those where tbe defendants were at large on bail. At tbe bearing, it appeared that these cases bad been called and regularly set for trial before tbe indictment of tbe petitioner bad been filed. It was admitted at tbe bearing, also, that tbe prosecuting officers bad been guilty of no negligence.

In order to understand fully this case, it is proper to refer to two sections of tbe criminal procedure act: Laws of Utah, 1878, p. 162.

“Sec. 464. Tbe court, unless good cause to the contrary is shown, must order tbe prosecution or indictment to be dismissed in tbe following cases:
“1. (Has reference to' failure to indict, and is not material on tbis point.)
“2. If a defendant, whose trial has not been postponed upon bis application, is not brought to trial at tbe next term of tbe court in which tbe indictment is triable, after it is found.
“Sec. 465. If tbe defendant is not indicted or tried, as provided in tbe last section, and sufficient reason therefor is shown, tbe court may order tbe action to be continued from term to term, and in tbe meantime may discharge tbe defendant from custody on bis own undertaking of bail for bis appearance to answer tbe charge at tbe time to which tbe action is continued.”

Tbe question at issue binges upon tbe construction to be given to tbe word may in tbe latter part of said section 465, tbe petitioner claiming that it should be construed shall, so that tbe section should read, “and in the meantime shall discharge tbe defendant,” etc.

Tbe supreme court of tbe United States states tbe rule in cases of tbis character to be that where power is given to public officers — in language something of tbe same kind as tbis — tbe .language used, though permissive in form, is, in fact, peremptory whenever tbe public interests or individual rights require its exercise: 4 Wall. 446.

Our attention has not been called to any public interest or sound public policy that would justify the court in allowing tbe petitioner to go out upon bis own recognizance. Nor can we see wherein tbe petitioner’s individual rights have been trenched upon. True, it is extremely grievous to remain in jail during these several months awaiting trial, but it is a necessity that tbe best interests of tbe public require.

There is no pretence that tbe action of tbe court was in any way arbitrary or oppressive. Tbe counsel for tbe people are not shown to have acted otherwise than with diligence and for the best interests of tbe public. There has been no unnecessary delay. Tbe crowded condition of the court calendar, no doubt, accounts in some measure for the delay, but even without this consideration, we do not think the postponement was unreasonable. There is on claim that the court was not authorized, from^the showing made, to grant the continuance: Ex parte Larkin, 11 Nev. 90.

If the construction contended for by the petitioner be adopted, the result would be that in every case (excepting in capital cases where the-proof of guilt is evident or the presumption thereof great), no matter how grave the charge nor how plain and urgent the grounds for postponement, yet if the court should continue the cause, on the application of the counsel for the people, beyond the term following that in which the .indictment was found, the defendant would be entitled to discharge upon his own undertaking of bail. This would, in very many cases, be equivaentl to a dismissal of the action. We do not think that we are warranted in placing such a construction upon the statute, when the plain reading is to the contrary, and the evident intent of the legislature was to the contrary. The purpose of the statute, no doubt, was to give the court express authority to discharge a defendant upon his own recognizance, if,, in the exercise of a wise discretion, it was deemed proper.

We are requested, however, that in case we hold that the language leaves the discharge discretionary with the court, we should exercise that discretion and grant the petitioner a discharge upon his own undertaking of bail. The district court, which was more familiar with the case than this court, declined so to do. No new light has been given us to guide us to a different conclusion.

The discharge of the petitioner is denied, and he is remanded to the custody of the marshal.

Zane, C. J., and Powers, J., concurred.  