I dissent from the views expressed in the foregoing opinion, but concur in the conclusion, on entirely different grounds.
According to the law of this case, as decided in the dismissal of the appeal on behalf of the state, by the order just made in State v. Northrup, defendant ought to be discharged from custody, as provided by the statute (Criminal Practice Act, section *556303), which statute is entirely consonant with the provisions of the constitution. (Art. Ill, § 16.) Because, as conceded, two full terms of court passed while defendant was held in jail, under indictment, and was not brought to trial, nor was such failure occasioned by his application for delay. The former trial and conviction had been set aside and annulled by order of the trial court, and defendant held for another trial; and, during the period mentioned, the state was attempting to prosecute an appeal which this court has decided (erroneously, as I believe) was not sanctioned by law. The constitution provides that “in all criminal prosecutions the accused shall have the right to a speedy public trial.” And the statute gives large indulgence to the state in providing “if any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense” he shall be entitled to discharge, unless the delay is granted on his application. After the former trial conviction was swept away by order of the trial court, and defendant was remanded to jail, with the indictment resting upon him in force, as this court has held; and from that date, March 24th, to the present December, the prisoner has been held in confinement, with no movement on the part of the state toward bringing him to trial on the indictment. During this time, as conceded, at least two terms of the court “having jurisdiction of the offense,” and fully equipped to try said cause, have convened, progressed through the term, and adjourned; and all this period of time has been frittered away in a fruitless and illegal attempt to prosecute an appeal, which the law, according to the ruling of this court, did not permit on behalf of the state. I think counsel for the prisoner are right in reasoning that if this court held the attempted appeal was without authority of law, then the prisoner was entitled, under the statute and constitution, to discharge. Counsel for the prisoner did not find in those constitutional and statutory enactments the idea, “in effect,” as the foregoing opinion put it, that if the prisoner has been tried once within the time provided by law, and the results of that proceeding be entirely annulled, then the prisoner may be kept in jail, an indefinite length of time, with the indictment hanging over *557him, without trial, and the statute referred to has no effect. But such appears to be the interpretation placed upon the provision by the majority of this court, in saying the prisoner “ does not bring himself within the provision of section 303, it is not the fact that he was not brought to trial before the end of the second term held after the information was filed.” The opinion of the majority of this court, read in connection with their opinion in dismissing the state’s appeal in the same case, concedes that the state, without any legal ground so to do, have held the prisoner in jail more than two full terms of the trial court, without bringing him to trial; and, according to the interpretation and application of section 303, as found in the foregoing opinion, the prisoner can now be kept in jail as many terms as the state, through delinquency, without any legal ground therefor, may be disposed to delay the trial. This interpretation is based upon the assumption that said section provides “ in effect ” that if the prisoner is brought to trial before the end of the second term after the indictment is filed against him, and that proceeding is annulled, then the prisoner may be held in jail, without trial, as long as the state may see fit, without any legal ground to support said action, and the prisoner cannot claim the protection of the constitution and statute against such wrongful delay. I do not concur in that interpretation of the statute, nor do I find in the statute or the constitution any implication or proviso that the same shall have no effect in case the state delays the trial, by undertaking in a fruitless and illegal method to test some question of law; even if “the contest was vigorous and earnest” in respect thereto. Nor should there be read into that statute a proviso that it shall not have effect if the state “did not unreasonably delay the trial” of the prisoner, as seems to be interpolated into it in the foregoing opinion. Neither the statute nor constitution has made any such proviso. The statute fixes the delay which shall give the prisoner the right to claim discharge, without inquiring whether there was a plausible, reasonable, or unreasonable excuse for the delay. The statute declares all the grounds upon which the discharge may be demanded, and in this case it is practically conceded that all those grounds exist in favor of the prisoner. But practically there is read into that statute by the foregoing opinion a proviso which *558it does not contain, to the effect that if the prosecutor conceives that he has a question of law to test on appeal, and suffers the prisoner to lie in jail under indictment three quarters of a year, in an attempt to take an appeal which the law does not permit, then the prisoner shall suffer without benefit of the guarantee of the constitution and statute.
The only ground upon which I can concur in the result of this decision is, that the state was authorized to prosecute the appeal, which it did prosecute, upon the ruling of the trial court on the questions of law, whereby the conviction was annulled and a new trial ordered. If that appeal was authorized by the statute the order of the court granting a new trial solely on two questions of law did not take effect, if an appeal was taken, until after review by the appellate court, and the prisoner’s application for new trial was held in abeyance until the appellate court passed thereon. Nor was the conviction annulled until the appellate court passed upon the appeal, if the appeal was authorized.
From that point of view the prisoner was not wrongfully held in jail, but was held there as the legal effect and result of his own application, because he was not entitled to a new trial until the authority therefor had been fully adjudicated. I have no doubt the order of the-learned trial court, in overruling the prisoner’s application for discharge, under this writ of habeas eoipus, was made on the theory that the state was entitled to appeal, and have reviewed the questions of law upon which the order for new trial was granted. From that point of view the ruling of the trial court was correct. "When the trial court ruled upon this application for discharge this court had not determined that such appeal was illegal, and should be therefore dismissed. But when it was found by this court that the-state had no authority to attempt such an appeal, it virtually follows as the law of the case, that the state had no authority, under the constitution and statute mentioned, to delay the trial of the prisoner, as has been done. The views of the majority of the court upon the motion to dismiss are contrary, however, to those I entertain, and, according to the views I entertain in that case, the prisoner would have no right to discharge under this proceeding. On that ground alone I can concur in the determination announced in this case.