dissenting.
Because in my opinion the record establishes that defendant was denied his right to a speedy trial, I dissent.
The record shows the following: On 4 August 1972 defendant was arrested on the charges in this case and since that date he has continuously remained in the State’s custody. Since 20 August 1972 he has been in Central Prison in Raleigh, serving a sentence imposed on his conviction for an unrelated offense, On 21 August 1972 the grand jury returned the indictment against him in this case.
In September 1972 defendant wrote a letter to the solicitor, sending copies to the resident judge and to his own attorney, asking that this case be tried at the term of court scheduled to begin on 16 October 1972. As the reason for this request, defendant stated that certain witnesses who could clear him were then available but were planning to move out of the State. Prior to 16 October 1972 defendant prepared, evidently on his own, a written “Motion and Request for a Speedy Trial Upon Pending Charge or for a Dismissal for Failure to Prosecute,” which he mailed to the clerk of superior court of Union County, who received it on 16 October 1972 and who, on the same date, delivered it to the solicitor.
On 12 February 1973 defendant again wrote to the clerk, sending copies of his letter to the resident judge, to the solicitor, and to his own attorney, referring to his previous requests for trial and to the fact that he had previously advised the court of the impending plans of his witnesses to leave the State. In this letter defendant stated that he had received no response to his previous requests for trial, that his witnesses had relocated in Florida, seriously injuring his defense, but that since he understood that a term of court was to begin on 16 February 1973, he would like his case to be placed on the docket and tried. On 20 February 1973 the resident judge wrote to defendant in Central Prison a letter in which the judge stated that he *667was informed that the solicitor expected to try this case “in March or April.”
In May 1973, this case was for the first time placed on the calendar for trial. However, by order dated 9 May 1973 the presiding judge on his own motion continued the case due to the fact that he was related by marriage to a close relative of defendant with whom he had discussed the case.
The case next appeared on the calendar for trial at the special session of superior court in Union County which commenced on 4 June 1973. On 5 June 1973 defendant’s counsel filed a written motion to dismiss on the ground that defendant had been prejudiced by the delay in that four witnesses who could have presented “substantive and valid defenses” and who had been available when defendant made his request for trial in the fall of 1972 had since moved to points unknown. An evidentiary hearing was held on this motion on 6 June 1973 before Judge Sammie Chess, Jr. At this hearing defendant testified that two of his witnesses, William Cook and Freddie McCrorie, would testify, if available, that defendant had been working with them, painting, at the time the crimes charged were alleged to have been committed. He testified that the other two witnesses, Shirley Hoglen and Phillis Deaton, had been barmaids in a lounge, and that these witnesses would testify, if available, that they had seen defendant purchase the gun from a man who came into the bar. Also at the evidentiary hearing, Ann Green, identified as defendant’s fiancee, testified concerning her efforts to keep in contact with these four witnesses during the fall and early winter of 1972. She testified that these witnesses had then been available and had told her that they were willing to testify to present these defenses, that none of the four were any longer available, that she had been told that all four had moved to Florida, but that she did not know how to get an address for any of them. Following the evidentiary hearing, Judge Chess denied the motion for dismissal, but, due to his illness, continued the trial of the case. Subsequently, on. defendant’s motion, Judge Chess did enter a written order making findings of fact from the testimony presented to him at the evidentiary hearing. Included among these findings of fact are the following:
“7. That sometime in late January or early February of 1973 witnesses moved out of the State of North Carolina. and their whereabouts are no longer known by the defend*668ant. That the defendant’s mother and one Miss Ann Green have continuously looked for witnesses since they left the State of North Carolina and have exhausted all possible means of finding their present whereabouts and are unable to ascertain their present whereabouts.
“8. That subpoenas issued by the Clerk of Superior Court of Union County for four witnesses were returned unserved by the Sheriff of Mecklenburg County, such subpoenas being issued on the 7th day of May, 1973, and returned on the 9th day of May, 1973, and such subpoenas being marked ‘Moved New Address Unknown’ or ‘Not Found Within Mecklenburg County.’ That such witnesses lived within Mecklenburg County from the period of August, 1972, to January, 1973.”
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“11. That the defendant has been incarcerated in Central Prison since approximately August 20, 1972, and has not been able to make contact with the four witnesses personally.”
On his findings of fact, Judge Chess made conclusions of law, including the following:
“2. That the delay occasioned by the failure of the State to bring the defendant to trial until the week of June 4, 1973, did not prejudice the defendant’s ability to present defenses in his behalf.”
s}: # & ❖
“4. That the delay is not violative of the defendant’s right to a speedy trial under the Sixth and Fourteenth Amendments to the U. S. Constitution.”
The case was next calendared for trial at the 18 June 1973 criminal session of superior court, but was again continued, this time in the discretion of the court when it appeared that trial of other cases would make it impossible to try defendant’s case. Defendant was finally tried before Judge Chess at the special session of superior court which began 30 July 1973. No witnesses were presented for the defense. The State presented only three witnesses. One of these was the victim of the crimes charged, one was the barber and part-time special deputy sheriff who purchased the gun from defendant, and the third was the sheriff of Union County who investigated the case. The *669entire testimony presented by the State is narrated on less than twelve pages of the record on this appeal.
While courts must of necessity apply a balancing test in deciding each speedy trial case, Barker v. Wingo, 407 U.S. 514, 33 L.Ed. 2d 101, 92 S.Ct. 2182, on review of this record I am compelled to the conclusion that defendant’s constitutional right to a speedy trial was here violated. Defendant made timely and repeated requests that his case be promptly tried. He put the State on notice of the reason for his requests, pointing out the precise prejudice which might result to him from any delay. This prejudice did in fact occur. (The trial court’s conclusion of law to the contrary is simply not supported by the facts which the court found.) During the entire time from defendant’s arrest to the day of his trial, both defendant’s person and the timing of his trial were within the exclusive control of the State. The State’s case was short and simple to present, and no contention has been made that its witnesses were not at all times quickly available.
It was not incumbent on defendant to show willful mala fides on the part of the State in delaying his trial. His right to a speedy trial and the values which that right is designed to protect could be, and in my opinion were, as effectively denied by mere inaction on the part of the State.
I vote to vacate the judgment appealed from and remand this case with direction that defendant’s motion to dismiss for denial of his right to a speedy trial be granted.