dissenting:
I must respectfully dissent, as I do not believe that W. Va. Code, 62-3-1, must be read as a legislative command to require a dismissal of the charge if a trial is not held at the same term that the indictment is handed down.
W. Va. Code, 62-3-1, must be read in pari materia with W. Va. Code, 62-3-21, which we have traditionally considered as the legislative mandate setting the outside limit of our constitutional requirement regarding a speedy trial found in Article III, Section 14 of our State Constitution. E.g., State v. Lacy, _ W.Va. _, 232 S.E.2d 519 (1977); State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504 (1961); Hollandsworth v. Godby, 93 W.Va. 543, 117 S.E. 369 (1923); Ex parte Chalfant, 81 W.Va. 93, 93 S.E. 1032 (1917).1
*469We stated in State v. Jones, 84 W.Va. 85, 87, 99 S.E. 271 (1919), that W. Va. Code, 62-3-1, was a statute governing continuances:
“Our statute governing the granting of continuances in criminal actions is section 1, ch. 159, Code: ‘When an indictment is found in the circuit court of any county against a person for a felony, the accused, if in custody, or if he appear in discharge of his recognizance or voluntarily, shall, unless good cause be shown for a continuance, be tried at the same term.’ ”
There can be little doubt that the “good cause” necessary for a continuance in W. Va. Code, 62-3-1, is a broad term which would permit a continuance for either the State or the defendant on a variety of grounds.
On the other hand, W. Va. Code, 62-3-21, specifies only five grounds which will toll the three-term rule: (1) defendant’s insanity; (2) State’s witnesses “being enticed or kept away” or “prevented from attending by sickness or inevitable accident”; (3) a continuance obtained by the defendant; (4) the defendant’s escape from jail or failure to appear according to his bond; (5) the inability of the jury to agree on their verdict.
Thus, it could be stated that one of the primary purposes of W. Va. Code, 62-3-1, was to provide an expanded right for a continuance by using the term “good cause” and at the same time preserving the ultimate boundary set by W. Va. Code, 62-3-21, by limiting in this latter section the type of good cause continuances that would toll the three-term rule.
It cannot be overlooked that W. Va. Code, 62-3-1, provides no stated penalty for the failure to comply with the one-term provision, whereas W. Va. Code, 62-3-21, expressly provides that for the failure to comply with the three-term rule, the defendant “shall be forever dis*470charged from prosecution for the offense.” Certainly, if the Legislature had intended to set W. Ya. Code, 62-3-1, as the outer boundary for a speedy trial absent a good cause continuance, it would have used this same language, forever discharging the defendant from prosecution.2
It seems to me that even a cursory reading of the two statutes would compel the conclusion that they were designed to complement each other. In this respect, W. Va. Code, 62-3-1, reflects the legislative intent to grant a liberal right for a good cause continuance, and if such good cause cannot be demonstrated, then the defendant must be tried during the indictment term. Counterbalancing this provision is W. Va. Code, 62-3-21, which enumerates only certain grounds for continuance which will toll the three-term rule and, in their absence, the outer boundary line is breached and the defendant is forever discharged from prosecution.
Superimposed on the text of the two statutes is the gloss of our own decisions, which cannot be ignored. We have recognized the outer boundary as set in W. Va. Code, 62-3-21, and have never read W. Va. Code, 62-3-1, as impacting on this outer limit, even though both statutes have been treated in the same case. E.g., State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106 (1969), cert. denied, 396 U.S. 986, 90 S.Ct. 482, 24 L. Ed. 2d 451. Moreover, even in our construction of W. Va. Code, 62-3-21, we have not adopted a restrictive time view. Thus, we have held that the term at which the indictment is returned is not to be counted in computing the three terms. State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504 (1961); State ex rel. Farley v. Kramer, supra. In addition, we have concluded in certain instances that where the defendant through his *471pleas or motions causes the case to be continued to the next term, the term at which the motions were submitted could not be counted under W. Va. Code, 62-3-21. See State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 833 (1972); State ex rel. Parsons v. Cuppett, 155 W.Va. 469, 184 S.E.2d 616 (1971); Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593 (1918).
There is no question that we imported this provision from Virginia at the time our State was formed. Chapter 208, § 2, 1849 Virginia Code.3 In Nicholas v. Commonwealth, 91 Va. 741, 744, 21 S.E. 364 (1895), the point was disposed of in a rather summary fashion:
“[But] the fact that one term has passed without an order in the case is not a denial of the right of the accused to a speedy trial.”
The historical background of the right to a speedy trial is treated at some length in United States v. Provoo, 17 F.R.D. 183, 196 (D. Md. 1955), aff’d, 350 U.S. 857, 100 L. Ed. 761, 76 S.Ct. 101, where its origin is stated to be Magna Carta. Provoo points out that: “In 1679 Parliament passed the Habeas Corpus Act, 31 Car II, ch. 2, which required that prisoners indicted for treason or felony be tried at the next sessions or released on bail... ,”4 According to Provoo, this type of statute was adopted by most of the original thirteen states, including Virginia. See Ex parte Santee, 2 Va. Cas. (4 Va.) 363 (1823); cf. Commonwealth v. Cawood, 2 Va. Cas. (4 Va.) 527 (1826). There is in the 1819 Code of Virginia the same basic provision tied to the right to bail. Ch. 169, Sec. 27 & 28. By the time of the 1849 Code of Virginia, this statute had been altered to remove the bail provision, and its form is substantially the same as our W. Va. Code, 62-3-1. See Note 3, supra.
*472It is not possible to tell whether this alteration of the statute in Virginia between 1819 and 1849 was a result of making the bail provision in the 1849 Code, Ch. 204, §§ 6 & 7, more complete. The important point is that the history of our W. Va. Code, 62-3-1, comes from Virginia and arises from English sources, where this statute was never thought to give an absolute discharge at the end of one term.
A final consideration, it seems to me, is that our utilization of the three-term statute, W. Va. Code, 62-3-21, as a benchmark for our constitutional provision regarding a speedy trial, is far more protective to the defendant than what is afforded by the Sixth Amendment to the United States Constitution. In Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S.Ct. 2182 (1972), the Supreme Court refused to establish the constitutional right to a speedy trial as measurable by a certain number of days or months. Instead, it adopted a balancing test in which the following factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. In Barker, a five-year delay in the trial was found by a unanimous Court not to violate the Sixth Amendment right to a speedy trial.
Because of our more limited time period in W. Va. Code, 62-3-21, when measured by the Barker constitutional standard, I see no reason to conceive that the Legislature intended an even shorter span by reading W. Va. Code, 62-3-1, to require a dismissal of the charge.
It seems to me that a more harmonious result would be to hold that W. Va. Code, 62-3-1, means that in the absence of a good cause continuance the defendant is entitled to be tried at the same term. If he is not so tried, he may compel the trial by a mandamus as in the case of other mandatory statutes.
To hold otherwise is to emasculate W. Va. Code, 62-3-21, and substitute in its place the one-term rule. These two statutes have existed since the formation of our State and there has never been any intimation that *473W. Va. Code, 62-3-1, was intended to override W. Va. Code, 62-3-21, and provide the drastic result of a total bar against further prosecution if the defendant was not tried at the term he was indicted in the absence of a good cause continuance by the State. We should not impose a constitutional dimension remedy on a statute in the absence of some clear legislative mandate.5
In Ex parte Chalfant, 81 W.Va. 93, 96, 93 S.E. 1032, 1033 (1917), the Court stated:
“[T]he statute was enacted to protect those accused of crime in their rights to a trial without unreasonable delay, guaranteed by the constitution. The statute prescribes what shall be deemed unreasonable delay and thereby places the subject beyond the discre*469tion of the court; it is mandatory, it says, for the neglect specified, the accused shall be forever discharged from prosecution for the offense charged against him.”
See Note, The Right to a Speedy Criminal Trial, 57 Colum. L. Rev. 846, 851-52 and n. 36, where the author finds that “[m]ost statutes provide that the court ‘shall’ dismiss after lapse of the specified period without good cause for the delay.” The only exception noted is a statute using the words “may dismiss.”
“When an indictment is found against a person for felony, in a court wherein he may be tried, the accused ... shall, unless good cause be shewn for a continuance, be arraigned and tried at the same term.”
See IX W. Holdsworth, A History of English Law (1966 reprint), at 117-19.
From a purely practical standpoint, today’s decision will bring about a result that has been deplored under the Federal Speedy Trial Act - that is, a rush to judgment over more fundamental considerations of a fair and orderly development of the trial. Black, The Speedy Trial Act - Justice on the Assembly Line, 8 St. Mary’s L.J. 225 (1976).