Appeal from the Circuit Court for Prince George's County (POWERS, J.).
The cause was argued before Brune, C.J., and Hammond, Prescott, Marbury and Sybert, JJ.
PRESCOTT, J., delivered the opinion of the Court.
The State has appealed from an order of the Circuit Court for Prince George's County, which dismissed an indictment against the appellee on the ground that he had been denied a speedy trial.
The only question posed for our determination is whether, upon the facts presented, the indictment was properly dismissed.
On June 20, 1962, an indictment containing six counts was returned by the Grand Jury, charging appellee and another defendant with conspiracy in connection with the operation of Free State Savings and Loan Association, Inc. On July 20, 1962, appellee acknowledged receipt of a copy of the indictment,
was advised of his right to counsel (Thomas M. O'Malley, Esq., entered his appearance for appellee), was arraigned and pleaded not guilty, and elected a jury trial. Bond was set at $2,000, and he was released on bail.
Ten days thereafter, appellee filed three motions: one for a bill of particulars; one for discovery and inspection; and one which requested the "court to grant the defendant herein an immediate trial," based on "Maryland Rules of Procedure, 1961 Edition, Rule 709," On August 14, 1962, within the time prescribed by our Rules, the State filed exceptions to all three of the motions, and on October 29, 1962, a hearing was held before Judge Parker on the motions and exceptions. The first two motions were granted by the court, and then consideration was given to the one for "an immediate trial."
At this point, it should be noted that Maryland Rule 709 was not designed as a substitute for one's constitutional right to a speedy trial under Article 21 of our Bill of Rights. It (with other Rules) was designed to take the place of former Section 592 of Article 27 of the Code (1957), now repealed. It provides that an accused may file a petition stating that he desires to waive his right to action by the Grand Jury, and he seeks an immediate trial. (The Rule also grants the right to request an immediate trial by persons praying a jury trial before, or appealing from convictions by, trial magistrates. This, of course, has no application here). Upon the filing of such a petition, the State's Attorney is required to file an information against the accused, except in cases tried upon warrants, and thereafter an accused who has "filed a petition under this Rule shall be tried, without regard to term of court,*fn1 within such reasonable time as to accord him a speedy trial." As pointed out by Judge Henderson, for the Court, in Heath v. State, 198 Md. 455, the statute
(now replaced by the Rules) was enacted for the benefit of accused persons, who had not been indicted, or who had prayed jury trials before, or appealed from the decisions of, trial magistrates, affording them the right, if they desired the same, to more expeditious trials. However, in the case at bar, the accused had already been indicted (a fact apparently overlooked by counsel when the motion was filed), so the Rule does not apply. The above, perhaps, is a complete answer to appellee's claim of denial of a speedy trial, for the motion is the only action taken, or indication, by him that he desired an early trial, and he concedes that in the absence of "a demand or request [for a speedy trial] he is construed to have waived his rights under the Declaration of Rights, Article 21." See Harris v. State, 194 Md. 288; Kirby v. State, 222 Md. 421; Swift v. State, 224 Md. 300; and annotations in 129 A.L.R. 572, at page 587, and 57 A.L.R. 2d 302, at page 326, et seq. However, we shall consider his claim from a constitutional viewpoint, as distinguished from a statutory or Rule of Court one (a number of States have statutes, supplementing constitutional provisions, relating to speedy trials), for Article 21 is self executing. Harris v. State, supra.
It will be noted that appellee moved for an immediate trial, and this motion was filed simultaneously with one for a bill of particulars, and one for discovery and inspection. At the hearing on the motions, the court granted the latter two, and informed appellee's counsel that appellee was entitled to a speedy trial, and, upon consideration of the motion for immediate trial, the court asked appellee's counsel, "you can't get a trial until you get that [the bill of particulars], can you?" To which counsel replied, "No, sir." Then upon request of the State's Attorney, which was not consented to, nor objected to, by appellee's attorney, the court granted the State forty-five days within which to comply with the two motions granted, as the appellee was out on bond and the State's Attorney had a Grand Jury convening shortly thereafter. After granting the forty-five days, the court ...