dissenting. I dissent for the following reasons:
1. Appeals by the State in criminal cases are not favored and are subject to the restrictions placed on them by Ark. Stat. Ann. § 43-2720 (Repl. 1964), which provides:
“Where an appeal on behalf of the State is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted by him. If the attorney general, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may, by lodging the transcript in the clerk’s office of the Supreme Court, within sixty [60] days after the decision, take the appeal.”
The prosecuting attorney did not follow the foregoing statute in the following respects:
A. There is no prayer for appeal in the record. The prosecuting attorney only gave a notice of appeal in accordance with Act 333 of 1971. Since § 13 of Act 333 of 1971 provides that “the manner in which the state or other prosecuting party may appeal in the criminal case is not altered by this act, ” we then must look to the prior law to determine what is meant by “a prayer for appeal.” The answer is provided in the Criminal Code § 327 [Ark. Stat. Ann. § 43-2710 (Repl. 1964)] as follows:
“First. The appeal must be prayed during the term at which the judgment is rendered, and the prayer noted on the record in the circuit court.”
B. Ark. Stat. Ann. § 43-2720, supra, contemplates that the prosecuting attorney will furnish a complete record. Although the prosecuting attorney, while erroneously acting pursuant to Act 333 of 1971, designated the complete record, the complete record is not before the court. The record contains only the reporter’s transcript of the proceedings on the motion to dismiss.
After the prosecuting attorney has properly prayed an appeal and delivered the complete record to the attorney general, an obligation is imposed on the attorney general to inspect the record to satisfy himself that error has been committed to the prejudice of the State and that the correction of the error is important to the “uniform administration of the criminal law.” C. R. Stevenson in his treatise, Supreme Court Procedure 167 (1956), states: “If the Attorney General desires to take an appeal, he must endorse on the transcript a direction to the clerk of the Supreme Court to file.”
I submit that without the complete record from which to make his inspection, the Attorney General has no basis for making a decision that the appeal by the State is necessary for the “uniform administration of the criminal law.” It would be most embarrassing to all officials involved in this appeal if the prosecution of appellee should subsequently be dismissed for insufficient evidence to sustain the conviction.
Also, I note that the United States Supreme Court has held that the Sixth Amendment guarantee of a speedy trial in the United States Constitution is applicable to the several states, Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967), Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969) and Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970), and although they have laid down no definite standard of what constitutes a speedy trial in terms of days, months or years, they have left no doubt that delay which results in prejudice to the accused will constitute the denial of a speedy trial. See Dickey v. Florida, supra. Consequently, without the complete record, which may show the deaths of witnesses during the delays involved herein, I don’t see how the Attorney General could be in a position to determine that the alleged erroneous ruling of the trial court is necessary to the “uniform administration of the criminal law.” Furthermore, we are in no position to determine that the trial court committed reversible error.
2. Next, I submit that the indictment against appellee should be dismissed for lack of a speedy trial under the Constitution of Arkansas, art. 2, § 10 which provides that “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. . . .”
The record shows the following dates relative to this case:
May 13, 1974 3rd Div. Circuit Court commenced its May term.
May 20, 1974 Appellee was arrested and placed in jail.
June 24, 1974 3rd Div. Circuit Court commenced its June term.
July 5, 1974 Charges were filed against appellee,
Sept. 16, 1974 1st Div. Circuit Court commenced its September term of court.
Nov. 18, 1974 2nd Div. Circuit Court commenced its November term.
Dec. 9, 1974 Special Div. of Circuit Court was held by appointment of Judge Richard Adkisson.
Dec. 18, 1974 Special Div. of Circuit Court was held by appointment of Judge Richard Adkisson.
Jan. 27, 1975 2nd Div. Circuit Court commenced its January term.
Feb. 17, 1975 1 st Div. Circuit Court commenced its February term.
Feb. 24, 1975 Appellee was put to trial.
Thus, from the foregoing dates, we can see that appellee was held in jail for all but one week of the May term of the Third Division Circuit Court. He was held in jail for all of the September term of First Division of the Circuit Court. He was held in jail for all of the November Term of the Second Division Circuit Court. He was also held in jail during all of the term of the Special Division of the Circuit Court held by the assignment of Judge Richard Adkisson. During all of this time that appellee remained in jail and in addition to the completed terms of courts, above mentioned, the Third Division of the Circuit Court commenced its June 1974 term and the Second Division commenced its January 1975 term of court — in other words, Circuit Court was held at least six times while appellee was languishing in jail and before the commencement of the February 14, 1975 term of court at which he was tried. Even then his trial did not commence un til one week later.
In Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972), we had before us a delay in a prosecution for more than seven months. We there said:
“The accused in this case remained in jail for more than seven months simply awaiting trial for a determination of whether he was innocent or guilty. It is difficult indeed to consider a trial after such a delay as a speedy trial in a three division circuit court in Arkansas where the accused may be tried in any one of the three divisions by the simple process of transferring the case from one docket to another under § 22-322,12, supra. On the assumption, however, that the trial court failed to recognize its jurisdiction and authority under § 22-322.12, supra, or misinterpreted the purpose and intent of our per curiam, supra, we hold that the trial court did not abuse its discretion in denying the motion to dismiss in this case, so the judgment in this case is affirmed.”
In view of our language in the Gardner case, it would appear that the trial court, in view of the authority and jurisdiction of the several Divisions of the Crittenden Circuit Court under Ark. Stat. Ann. § 22-322.12, was certainly warranted in finding that appellee had been denied a speedy trial — after all, appellee was held in jail after the term at which he was arrested for three full terms of the several divisions of the Crittenden Circuit Court without being put to trial.
For the foregoing reasons, I respectfully dissent.
Holt, J., joins in this dissent.