The opinion of the court was delivered by
Scott, J.The relator and one John Olsen were bound over to the superior court of Pierce county to answer a charge of burglary.
*258On the 18th day of September, 1893, Olsen was tried and convicted in said court, and on the 20th day of said month the relator was there tried and convicted, whereupon relator filed a motion for arrest of judgment and for a new trial. Upon the hearing thereof' said court set said conviction aside and fixed upon the 12th day of October, 1893, for a re-trial.
Said cause not yet having been brought to trial, said defendant asks to be discharged under § 1369, Code Proc., which provides that—
“if a defendant indicted or informed against for an offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found or the information filed, the court must order it to be dismissed, unless good cause to the contrary be shown;”—
And upon the ground that he has not been granted a speedy public trial by an impartial jury, as is provided by § 22, art. 1 of the constitution, and § 1363, Code Proc. As reasons why the writ should not be granted, the return to the order to show cause alleges said court was on the 12th day of October aforesaid occupied with the trial of other criminal causes, and for that reason it was impracticable to try said defendant at said time, and also for some time thereafter, and as a further reason for not bringing said cause to trial, it is alleged that in the opinion of the court and the prosecuting attorney it would have been impossible to have procured an impartial jury to try said cause from the panel in attendance at said term of court in consequence of two juries having been drawn therefrom previously for the purpose of trying said Olsen and relator as aforesaid, and it appeal’s that after the other business of the term had been disposed of, the jurors were discharged and the relator held in custody. It appears that only one of the departments of said court, however, was occupied with the *259trial of criminal causes, and that the defendant could have been tried in another department thereof, providing a jury could have been obtained therefor. The reasons advanced for not trying relator are unsatisfactory, and we are of the opinion that there should have been an attempt at least to have obtained a jury from said panel or otherwise as provided by law to re-try him. But, be this as it may, we do not think the relator has shown sufficient cause for his discharge at this time. Section 1369 aforesaid should not be held to apply to this kind of a case, at any rate until after the expiration of sixty days from the making of the order setting aside the trial which was had.
While it may be that the relator has not been granted a speedy and impartial trial within the other provision aforesaid, we do not think that the delay was under the circumstances so unwarranted as to entitle him to a discharge thereunder, whatever other rights he may have in the premises.
Writ denied.
Hoyt, J., concurs in the result.