STATE
v.
Harold SMITH.
No. 510.
Supreme Court of North Carolina.
May 3, 1967.*93 George M. Anderson and E. Ray Briggs, Raleigh, for defendant appellant.
T. W. Bruton, Atty. Gen., and George A. Goodwyn, Asst. Atty. Gen., for the State.
PER CURIAM.
The defendant excepts to the refusal of the court to allow his motion for nonsuit at the close of the State's evidence and at the close of all the evidence. However, from a consideration of the evidence related in the statement of facts, we hold that it was sufficient to support the verdict and repel the motions for nonsuit.
The defendant strenuously argues that the cause against him should have been dismissed for failure to grant a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. He offered evidence that between the date of the alleged offense and his last trial that a period of some thirty months had elapsed, during which time he was confined to a small cell on death row at the State's Prison. He testified that when the second mistrial occurred in July 1965 that he requested that he be tried again within ninety days, and that he wrote the solicitor, the judge, the Attorney General, and others, on numerous occasions, requesting a speedy trial, but sustained a burdensome delay.
*94 The State in reply called attention to the fact that the defendant was tried promptly the first time, and that a mistrial resulted upon the defendant's motion; that he was tried again within a few months, and the second mistrial became necessary and was granted upon the defendant's motion.
In response to the defendant's motion to dismiss, the solicitor asserted that he had a limited number of terms of court during the period in question, that there were always many prisoners in jail because of their inability to give bond, that there were some 300 cases on the docket, that it was not practical to dispose of the case earlier, and that defendant has suffered no deprivation, since he was serving and getting credit upon his sentences while awaiting trial.
In the recent case of State v. Hollars, 266 N.C. 45, 145 S.E.2d 309, Justice Sharp discussed the subject of speedy trials in connection with the Sixth Amendment. She quoted from 22A C.J.S. Criminal Law § 467(4) as follows:
"`Four factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: the length of the delay, the reason for the delay, the prejudice to defendant, and waiver by defendant.'"
She further stated, "the right to a speedy trial is not violated by unavoidable delays nor by delays caused or requested by defendants."
While it is true that it was some thirty months from the time of the event until a jury trial was completed, it must be remembered that two other trials had been held earlier and that due to no fault on the part of the State, but in the interest of the defendant's welfare, mistrials were ordered. Had the defendant been held in jail as a prisoner because of his inability to make bond, we are quite sure that he would have received an earlier trial, since the solicitors generally attempt to try jail cases before getting to those where the defendants are at liberty on bond. In this case the defendant has suffered no prejudice by the delay. Having a life sentence imposed in 1961 to serve and a 36-year federal sentence, running concurrently with it, the defendant could have had no practical or substantial hope of pardon or parole prior to the time of his 1967 trial. Meanwhile, he was getting credit upon the service of these sentences so that we cannot find that he suffered any disadvantage by the delay.
In State v. Patton, 260 N.C. 359, 132 S.E.2d 891, the following language was used:
"The Court said in Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950, 954: `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.'
"The constitutional right to a speedy trial is designed to prohibit arbitrary and oppressive delays which might be caused by the fault of the prosecution. Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d 393; State v. Hadley, Mo., 249 S.W.2d 857. The right to a speedy trial on the merits is not designed as a sword for defendant's escape, but as a shield for his protection."
In view of the above succinct statements of the purpose of the constitutional safeguard and the exhaustive and thorough opinion of Justice Sharp in the Hollars case, we find it unnecessary to discuss the question further.
No error.