(dissenting): I find myself unable to concur in the opinion of the majority. I shall briefly state my views. It seems to me the opinion overlooks the fundamental reason, the provision for a speedy trial is in most, if not all, our constitutions. One of these reasons undoubtedly was that an accused' should be tried when the witnesses were readily available. Of course they become unavailable as readily when a defendant is in the penitentiary as when he is in jail or at liberty on bond. •
I am not impressed with the conclusions reached in the prevailing opinion, that the Russell county attorney was not authorized to serve the warrant while the man was in the penitentiary. Neither am I impressed with the statement that the sheriff’s duty does not require him to request parole or other release of a prisoner for trial even if such a request would have availed. The reasoning upon which the above conclusions were based overlooks the fact that the state conducts a prosecution, the county attorney and the sheriff are simply performing their duty as officers of the state. The state is the plaintiff. This man was in the custody of the state at all times we are considering here. The technical question of whether or not the sheriff could serve the writ on the petitioner in the peni*44tentiary is not entitled under the circumstances to any consideration at all in my opinion. What was the necessity for the serving of a warrant? The man was already in the custody of the state. I note the opinion states in the last paragraph: “Under the facts of the case, there was no time when the state could have produced the accused petitioner in the Russell county district court and proceeded to trial, and it follows that when the state could not try him, because of the defendant’s absence, it did not deny him a speedy trial.” This statement is not correct. There never was a time when the state could not have produced him. In fact, a few lines above this, the opinion states: “The petitioner was confined in the state penitentiary; that on the latter date he was paroled to the sheriff of Pawnee county for trial and from about November 9, 1945, to May 4, 1949, he was confined in the penitentiary. On the latter date, and at the time the sheriff of Russell county was about to take him into custody under the warrant issued out of the Russell county district court . . .” Just why he could not have been paroled to the sheriff of Russell county at any time after he was first apprehended in 1944, just as he was to the authorities of Pawnee county, does not readily appear. Practically everybody in the law enforcement business in and out of the statehouse knows that the practice has been followed since statehood of taking men out of the penitentiary and trying them for some offense and returning them after the trial.
There is another reason why this writ should be allowed. The theory of our indeterminate sentence law is that a man is incarcerated in the penitentiary and usually through good behavior earns his release in somewhat less time than the original sentence pronounced under the statute. In theory at least we regard the penitentiary as a place of rehabilitation and to try him at the end of his rehabilitation and sentence him again after his first sentence, for which he has been confined, and following which he has been rehabilitated, is to strike at the philosophy of the indeterminate sentence law. The theory is that when he has been paroled from the first sentence he has served his debt to society.
Thiele and Wedell, JJ., dissent.