I dissent.
The petition for the writ shows petitioner was admitted to bail, which was supplied. He is not in actual custody, and is therefore not entitled to the writ of habeas corpus, which is for the benefit of those unlawfully restrained of their liberties. (Secs. 19-4301, 4302, 4305, 4308, 4309, I. C. A.;Evans v. District Court, 47 Idaho 267, 275 P. 99; State v.Olsen, 53 Idaho 546, 26 P.2d 127; In re Dykes, et al., (Okla.) 74 P. 506; Ex parte Powell, et al., (Wash.)70 P.2d 778; Ex Parte Ford (Cal.) 116 P. 757; Ex parte Gilkey (Cal.)259 P. 766; Ex parte Newman, (Ariz.) 262 P. 10; Hyde v. Nelson,287 Mo. 130, 229 S.W. 200, 14 A.L.R. 339; Note and cases cited, 14 A.L.R. 344, 25 Am. Jur., p. 158, Sec. 24.)
Habeas corpus is an extraordinary remedy; it cannot be used to perform the office of appeal or writ of error. (In re Davis,23 Idaho 473, 130 P. 786; In re Bean, 58 Idaho 797,79 P.2d 540.)
I cannot agree with the construction herein placed by the majority opinion of the court on Sec. 19-3401, I. C. A. That pronouncement of the law-making body specifically directs the trial court, unless good cause to the contrary is shown, to order the prosecution or indictment dismissed, if a defendant whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable, after it is found. The majority opinion is clear to the effect that the reasons given by the learned trial judge for continuance of the case over petitioner's objections, are "of doubtful justification."
Good cause for continuance was not shown in this case.
"The present stage of the war or present consequent demand for service of all man and woman power in activities directly contributing to our successful prosecution or assistance in the prosecution of the worldwide conflict, or the fact that during certain seasons of the year farmers *Page 529 should not be called upon to sacrifice their farm activities, does not authorize * * * continuance of criminal cases or cessation of judicial functions, an integral and constitutional part thereof being speedy jury trials."
As expressing my view of the law, I have eliminated from the paragraph of the majority opinion immediately above quoted, the word "unlimited", which appears immediately before the word "continuance" in said paragraph of said opinion. In support of the above referred to statement pronounced by the majority, that opinion cites State v. Carrillo, 41 Ariz. 170,16 P.2d 965; State v. Chadwick, 150 Ore. 645, 47 P.2d 232. We find no justification in either of those decisions, for the use of the word unlimited here. See also State v. Arkle, (Mont.)245 P. 526; State v. Brodie, (Wash.) 35 P. 137.)
Under my view of the law in this case, consideration of the effect of this section is not required, since the right to the writ does not exist because defendant is not in custody, but my present views as to defendant's rights under Sec. 19-3401, are here inserted because of the construction placed thereon by the majority opinion.
It would appear from the authorities a defendant in a criminal case, not brought to trial within the statutory period, and whose motion for dismissal of the indictment is denied by the trial court, has a remedy for relief by mandamus proceedings. (8 Cal. Jur., p. 207, Sec. 280; Note and annotations, 58 A.L.R. p. 1510; State v. Chadwick, (Ore.)47 P.2d 232.)
The writ should be quashed.