(dissenting). There is not a word in the statute specifying that the order for a special term of court must be made ten days before the commencement of such term. The only jurisdictional requirements are, that person or persons must be confined in jail awaiting trial, that the judge must make a written order and transmit it to the clerk, to be filed and entered of record, and that such special term shall not be held within twenty days of the regular term of the court. The only specifications as to time are, that the special term shall not be held within twenty days of the regular term of such court (section 1537, Kirby’s Digest), and that notice shall be served on the prosecuting attorney ten days before the commencement of the special term. The latter provision is not jurisdictional, and such notice may be waived by the prosecuting attorney. Dixon v. State, 29 Ark. 165. The language of the opinions in the cases cited by the majority is dictum, and I am unwilling to, follow it, as I believe it to be unsound and contrary to the plain letter of the statute. In the later cases cited the court merely followed the language of Chief Justice RlNGO in the Dunn case, which was construed to mean that the order for the special term must be made ten days before it is to be commenced. But an examination of the opinion in the Dunn case does not justify the construction that the above fact is jurisdictional. In that case the point was, whether or not the omission, from the record, of the judge’s order for the special term was fatal. Judge Ringo said that the authority to hold a special term depended upon the -following facts:
“ 1st. That some person is confined in the jail who may be lawfully tried by that court upon some criminal charge. 2d. - That it shall not interfere with any other court to be held by the same judge. 3d. That it shall not be held within twenty days of the regular term of such court. 4th. That an order therefor, as required by the • statute, be made out by the judge and by him transmitted to the clerk; and 5th. That the same be entered on the records of the court. These circumstances are considered essential to the legal appointment, constitution and organization of a special term of the circuit court, because it is a special authority conferred upon the judge to accomplish a specific and specified purpose contrary to the general and regular course of proceeding prescribed by law, and therefore, being a special power, every circumstance necessary to its exercise must exist and be made to appear of record; otherwise, the power can not appear to have been legally exercised, and the most important- circumstance upon which the right of power of a judge to order a special term of the circuit court is made to appear can not judicially appear otherwise than by being made of record."
Further on in his opinion he stated that the order must be made ten days before the commencement of the term, but he was not then speaking of the jurisdictional matter which must appear of record. He obviously referred to the requirement for giving the prosecuting attorney notice, which the court subsequently held, in the Dixon case, supra, might be waived by that officer. The sole purpose of the statute is to afford means for expediting trials of accused persons confined in jail and to confer power on the circuit judge to call a special term of court for that purpose. There is nothing to indicate an intention on the part of the lawmakers to give time for public excitement to be allayed, as that would be a matter which addressed itself to the discretion of the circuit judge.
Frauenthal, J., concurs.