dissenting. The conclusion of the court is one I am not able to accept and I dissent from it for reasons which are perfectly evident to me.
The discharge of the defendant, indicted for possession of cocaine, under the provisions of R. C. 2945.71 and 2945.73, is in effect an acquittal of this serious offense, and the order granting it is a final judgment in the cause and puts an end to all proceedings therein.
The public, as well as an indicted citizen, has a deep interest in the disposition of criminal cases. “Justice, though due to the accused, is due to the accuser also.” Snyder v. Massachusetts (1934), 291 U. S. 97. It is my view that the discharge of this defendant under the facts before us is improper and illegal and should be reversed.
The following is the chronology of the proceedings, as reflected by the transcript:
February 29, 1968. Defendant indicted for possession of narcotics (R. C. 3719.09).
March 4, 1968. Defendant arraigned and pleaded not guilty. Bond was set at $2500.
March 14, 1968. Defendant had a pre-trial before Talty, J.
June 10, 1968. Defendant’s motion to suppress evidence was filed and, the next day, was referred to the trial judge for ruling.
August 20, 1968. Writ of habeas corpus filed on defendant’s behalf by his attorney, Finley B. Nix.
August 30, 1968. Application for writ of habeas corpus denied by Jaffe, J.
September 11, 1968. Motion requesting the privilege of examining the narcotics (cocaine) alleged to have been in the possession of Archie Cross, the defendant, filed by attorney William S. Cooper, whose name appears in the record before us for the first time.
September 11, 1968. Motion to examine state’s evidence, to wit, narcotics, referred to trial judge, A. Pryate], P. J.
September 11, 1968. Motion for an order requiring the prosecuting attorney to furnish bill of particulars in ac*280cordance with R. C. 2941.07 filed on behalf of defendant by attorney William S. Cooper.
September 11, 1968. Defendant’s motion for a bill of particulars granted. A. Pryatel, Judge.
February 7, 1969. Motion requesting the dismissal and discharge of the indictment against the defendant was filed by attorney William S. Cooper.
February 13, 1969. Motion requesting dismissal and discharge of indictment against defendant referred to trial court. Case being assigned to room for trial. Friedman, P. J.
Those entries detail the various steps of record taken before the cause was sent to the courtroom for trial on February 25,1969.
At the outset of the proceedings on the latter date, the trial court noted that it had the three pending motions before it and asked defendant’s counsel if there was any particular order in which they would like to have these motions approached. Attorney Cooper expressed a preference to have the motion for dismissal and discharge of the indictment against the defendant determined first. This was the last of the three filed chronologically. The court proceeded in accordance with this preference.
Attorney Cooper put co-counsel Finley Nix on the witness stand first. Mr. Nix testified that he filed the habeas corpus writ, and that it was heard on the Friday prior to Labor Day, 1968; that Judge Jaffe denied the writ and requested the assignment commissioner to set the case down for hearing at “the earliest possible time in the next term of court.” It is to be noted that no such instruction is included in Judge Jaffe’s entry of August 30,1968, denying the writ.
The September term of court commenced the day after Labor Day, 1968. This would be the second term after the defendant, Cross, was indicted and during which period he was incarcerated.
Mr. Nix testified that he went to the assignment commissioner and asked him to set the case down; that it was *281not set -down. He asked the assignment commissioner to do this on five occasions, bnt did not specify dates. However, it is to be remembered that attorney Cooper appeared in the case with the filing of the two motions on September 11, 1968. The September term of court began on Tuesday, September 3, 1968, so Mr. Nix apparently made his five requests in the following eight days. Mr. Nix testified further that he had made no written request for trial, and that he had made no motion to dismiss the indictment in 1968; that the habeas corpus action he filed for defendant related to the fact that defendant was also being held as a parole violator; that he did not file any written request for trial in the January 1969 term because “at that time he was not acting alone.”
We must now consider some pertinent facts elicited from the assignment commissioner, Henry GL Primosch, at the hearing on defendant’s motion for discharge.
Mr. Primosch testified that attorney Cooper became attorney of record for Cross on September 10, 1968; that he had conversations with Mr. Cooper regarding the time within which the case would be set for trial; that he put the case on the trial list on October 4, 1968; that on October 9, 1968, he had Mr. Cooper listed as being engaged in the civil branch of the court; that in December 1968 he had Mr. Cooper listed as being ill in the hospital; that he received a letter from Mr. Cooper to that effect; that there was never any request by the prosecutor to continue the trial; that he did not remember any conversations with Mr. Nix; that he did call Mr. Cooper’s office in December and was told that Mr. Cooper was not available; and that there are about 900 criminal cases pending trial.
The court stated, in ruling on the motion for discharge :
“The motion requesting dismissal and discharge of the indictment against the defendant is reluctantly granted.
“I say reluctantly, because, Mr. Cross, the law you have been violating all of your life is here now to protect you. From what I see of your track record, as we call *282it around here, you have been lying and cheating and stealing all of your life. But that isn’t the question before us this afternoon.
“Mr. Angelas [the assistant prosecutor], I do feel that this statute is self-operating; mandatory. It does impose a statute of limitations on the prosecutor, or on the assignment commissioner. * * *
"* * *
“The statute says, shall be discharged unless a continuance is had on his motion or the delay is caused by his act.
“I think you will find that under State v. Gray, in 1 Ohio State 2d, page 21, which is a 1964 case, that this is a mandatory statute.
"* * *
“The defendant’s motion is granted. The defendant is discharged from custody, at least as relates to this case. I don’t know if there is anything else.”
To recapitulate briefly, the state was at all times ready to try this case; the state never asked for a continuance; counsel for defendant at no time requested in writing an immediate trial; counsel for defendant was engaged in the civil branch when the matter was placed on the trial list in October 1968; and counsel for defendant was admittedly in the hospital in December 1968.
The defendant is not entitled to be discharged under these facts on the basis of our ruling in State v. Gray (1964), 1 Ohio St. 2d 21, upon which the trial court relied. First of all, Gray applies to the facts in that case. In the opinion of this court in Gray, it is stated, at page 25:
“During the argument of this cause to this court, counsel for the state gave, as the only excuse for a delay of approximately ten months in setting this cause for trial, that a courtroom was not available. It was conceded that there were ten rooms available for the trial of causes in the courthouse of Hamilton County. Civil cases were continuously being tried during the period of time the accused was in jail waiting for trial, and it appears further that persons indicted subsequent to the return of the *283indictment of the accused, were also tried and/or their cases were otherwise disposed of.
"* * *
“We do not believe that the excuse offered is sufficient ground upon which to refuse to discharge the appellant within the provisions of the statutes made and provided. For approximately ten months the appellant was in jail while civil cases were being disposed of and subsequently indicted persons were brought to trial or their causes otherwise disposed of.”
Secondly, in paragraph two of the syllabus in Gray it is clearly set out as one condition before discharge under R. C. 2945.71 and R. C. 2945.73 that “no delay was caused by any act of such accused * * Attorney Cooper entered this case as the trial attorney. He conducted the hearing on defendant’s motion for discharge. He did not take the stand himself and deny that he was engaged in the civil branch of common pleas court in October 1968, when this cause was placed on the criminal trial list. Nor did he dispute that he was unavailable to try the case in December 1968, when the assignment commissioner called his office, and that he was in the hospital at the time.
Those statutes (R. C. 2945.71 and 2945.73) have been in our state code of laws in substantially the same form since 1869 (66 Ohio Laws 287, 311). They were interpreted first in Ex parte McGehan (1872), 22 Ohio St. 442, and this time honored interpretation has stood the test of further judicial review for one year less than a century. Paragraph three of the syllabus of McGehan reads:
“To entitle a prisoner to such discharge, on the ground that he has not been brought to trial during the time limited by Sections 161 [R. C. 2945.71] or 162 [R. C. 2945.-72], he must make application to the court therefor, and if when he makes such application, whether during the time so limited, or at a subsequent term of court, the state is ready to proceed with the trial, or makes the showing specified in Section 163 for a continuance, he will not be entitled to be discharged.” (Emphasis added.)
That paragraph of the McGehan syllabus was approved *284and followed in paragraph one of the syllabus in State v. Cunningham (1960), 171 Ohio St. 54. Cunningham also stands for the principle enunciated in paragraph two of the syllabus thereof:
“Where a criminal cause is continued without disclosing the ground for such continuance, it will be presumed that the continuance was upon sufficient ground, in the absence of anything in the record to the contrary, notwithstanding the provisions of Sections 2945.72 and 2945.73, Revised Code. Paragraph one of the syllabus of Johnson v. State, 42 Ohio St. 207, approved and followed.)”
To discharge this defendant from the indictment herein, for reasons as tenuous as those asserted, is erroneous under the applicable law, and is hardly fair to the citizens of this state who have a stake in the enforcement of a law enacted for the common good covering the possession by an individual of cocaine.
Schneider and Stern, JJ., concur in the foregoing dissenting opinion.