concurs, concurring and dissenting:
I concur in Part I of the court’s-, opinion. Understanding the dicta contained in the first paragraph of Part. Ill as leaving untouched our carefully considered decision in Hansford v. United States, 112 U.S.App.D.C. 359, 364, 303 F.2d 219, 224 (1962) (en banc, two-judges dissenting), I concur in the reversal for failure to give a suitable instruction in the “unusual factual setting” here presented. I respectfully dis*793sent from Part II which holds that the .appellant was not denied his Sixth .Amendment right to a speedy trial.
Unlike Continental concepts of criminal justice, under our law a man charged “with crime is presumed innocent. But, under today’s decision, an innocent man may be held in jail for almost six months ■awaiting his trial. Under this ruling, for the first six months after accusation, the presumption of innocence — and the right to a speedy trial — mean very little to a defendant unable to make '.bond.
The Government argues that, considering calendar congestion and related evils, .six months really is not an unreasonable time to spend in jail awaiting trial. ’That appraisal, of course, depends on “whose time is being spent. Able assigned counsel for the accused on one oc-•easion spent 30 minutes in jail interviewing his client. During oral argument he assured us that, in jail, 30 minutes seemed a long time. I doubt that ■anyone would gainsay his statement.
Some may think the Sixth Amendment “right to a speedy and public trial” is a legal term of art which does not mean “what it seems to say. I find no basis in ■either the terms or the history of the Sixth Amendment for any, such conclusion. There is no indication that the Framers of the Amendment used the word “speedy” in other than its dictionary meaning. Webster’s Third New International Dictionary, Unabridged (1961), defines “speedy” as: “rapid in motion: going or able to go quickly: swift.” Perhaps the trial below, which consumed only a few hours, meets this definition of “speedy,” but the six-month wait in jail hardly does. And it is not to the duration of the trial but to the delay and detention before trial that the Sixth Amendment speaks — the detention of innocent persons accused of crime.
Officials of our legal system, in appraising the reasonableness of pre-trial detention, sometimes consciously or unconsciously assume that, in sentencing, the judge will consider, or has considered, the time spent awaiting trial. The difficulty with this assumption is that it disregards the presumption of innocence, as well as the fact that not all persons accused of crime are ultimately found guilty. For example, the statistics furnished by the Administrative Office of the United States Courts tell us that 27.6 per cent of the defendants tried in the District Court here are found not guilty. The 27.6 per cent is based on July 1, 1962 to June 30, 1963 figures. The actual count is 288 convictions and 110 acquittals.
In the twentieth century, with its automation, its computers, and its accent on action, everything seems to be getting speedier except criminal justice. And, undeniably, some of that lack of speed results in great injustice. In my judgment, today’s decision is not designed to improve the situation. In the past, this court — over strong dissent — has affirmed convictions where there had been substantial delay in bringing the cases to trial. King v. United States, 105 U.S.App.D.C. 193, 265 F.2d 567 (1959) (5-4), cert. denied, 359 U.S. 998, 79 S.Ct. 1124, 3 L.Ed.2d 986 (1959) ; Porter v. United States, 106 U.S.App.D.C. 150, 270 F.2d 453 (1959) (2-1), cert. denied, 363 U.S. 805, 80 S.Ct. 1240, 4 L.Ed.2d 1148 (1960). It was hoped that those cases— both the majority opinions and Chief Judge Bazelon’s dissents — would serve as warning, and have the effect of discouraging delay in subsequent cases. These hopes have not been fulfilled. Then, as of July 1, 1959, there were 17 pending, untried cases which had been awaiting trial six months or longer in our District Court; as of July 1, 1963, there were 66 such cases; as of January 1, 1964, there were 70 such cases. I note also that of these 70, 25 cases have been awaiting trial for more than a year —and 9 of these 25 eases are waiting in jail.
For these reasons and the reasons stated by Senior Judge Edgerton in his panel opinion in this case, I respectfully dis*794sent from Part II of the court’s opinion. Judge Edgerton’s opinion follows.
“EDGERTON, Senior Circuit Judge: On October 24, 1961 appellant was arrested on narcotics charges. He did not make bail of $2500 and was confined in jail to await trial. He was indicted on two counts on November 13, 1961, and counsel was appointed. He was arraigned and pleaded not guilty on November 17, 1961. Trial was set for January 3, 1962, 47 days after indictment, but a succession of continuances delayed trial until April 16, 1962, five months after indictment. Appellant was convicted on April 17, 1962, and sentenced to concurrent terms of five and ten years on June 1, 1962. On December 31, 1962, by order of this court entered November 21, 1962, he was admitted to bail of $1500 pending appeal. He had been in the District of Columbia jail a year and two months, including nearly six months awaiting trial.
“There were six continuances:
“1. For 15 days, until January 18, 1962; at the government’s request because a narcotics agent was on leave.
“2. For 3 weeks, until February 8, 1962; because the prosecutor would be engaged in another ease on January 18.1
“3. For 25 days, until March 5, 1962; because the prosecutor was engaged in another trial on February 8. The court ordered that appellant’s case be given priority and a day certain, but it does not appear that this was done.
“4. For ten days, until March 15, 1962; at the government’s request, because a government witness was ill.
“On March 10, and again on March 15, the defendant moved unsuccessfully for discharge for want of a speedy trial.
“5. For one day, until March 16, 1962. The March 15 ‘case card’ entry reads: ‘carried over to 3/16/62 criminal courts engaged in trial & case not reached’.
“6. For one month, until April 16, 1962. The March 16 ‘case card’ entry reads: ‘Cont’d. to 4/16/62 Mr. McLaughlin [an Assistant United States Attorney] engaged in motion before Judge Youngdahl and he had taken this case for Mr. Smithson [the Assistant United States Attorney previously assigned to the case] and Mr. Canfield [defense counsel] is not available till 4/16/62’. The record does not show why the government, apparently on the day set for trial, reassigned the case to an attorney who was not available to try it. Mr. Smithson, not Mr. McLaughlin, finally tried it.
“The continuance from March 16, 1962, was sought by the Government and granted by the court in spite of the fact that on March 15, 1962, the court had denied two motions, filed by the defendant pro se, for discharge for want of a speedy trial. When the case came on for trial on April 16, 1962, motion for discharge for want of a speedy trial, filed by defense counsel, was also denied. At that time appellant had been in jail nearly six months and under indictment five.
“The prosecution caused five of the six continuances that delayed the trial. The five aggregated 102 days. The only other continuance (numbered 5 above), because the criminal courts were engaged, was for only one day. The defense caused no continuance. Defense counsel was ready on March 15, and again on March 16, although after March *79516 he was not available again until April 16.
“The Sixth Amendment of the Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a •speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
■“The emphatic words ‘shall enjoy’ are used nowhere else in the Constitution. Moreover, the order in which rights are enumerated in this Amendment emphasizes ‘the right to a speedy and public trial’. Before a case is tried, the ‘district wherein the crime shall have been committed’ has been ‘ascertained’; the accused has been ‘informed of the nature and cause of the accusation’; ‘the witnesses against him’ have been summoned ; ‘process for obtaining witnesses in his favor’ has been issued; and ‘the Assistance of Counsel for his defense’ has been secured. If the framers had been content to follow a chronological order, they would have put last ‘the right to a speedy and public trial’. They disregarded chronological order and put this right first, immediately after ‘the accused shall enjoy’.
“We do not suggest that constitutional rights may be whittled away unless they are emphatically expressed. We do urge that the right to a speedy trial should be fully respected.
“The right ‘is necessarily relative. It is consistent with delays and depends upon circumstances.’ 2 The responsibility of the prosecution for the delay in the present case is only one of the cireum-stances which, taken together, in our opinion make it impossible to reconcile this delaj1- with appellant’s right to a speedy trial.
“Because he could not buy a $2500 bail bond the appellant was imprisoned, despite the legal presumption of innocence, while he waited to be tried. This means that for nearly six months he was imprisoned not because he was guilty but because he was poor. An accused person may not be denied counsel, or the right to take an appeal that is not plainly frivolous, because of his poverty. We think the same general principle covers this case. In our opinion the right to a speedy trial includes, in the circumstances of this case, a right not to be kept in jail for months without trial for the convenience of the prosecution. We think this right may not be denied because the accused is poor. We need not consider how we should decide the case if the delay caused by the prosecution had been less substantial,3 if continuances for substantial periods had been granted at the request of the defense or caused by the unavailability of judges, or if the defendant had failed to make repeated motions for discharge for want of a speedy trial.
“A majority of this court in banc held that, in the circumstances of the King case, trial of an imprisoned defendant six months after he was indicted and nearly five months after the date originally set for trial was not too late. But the court intimated that it would probably have reached a different conclusion in circumstances like those now before us. It said: ‘First of all, the prosecutor had no part in any of.the delays. He never requested or occasioned a continuance. *796* * * In the second place, of the seven continuances three were on King’s behalf; of the 140 days which elapsed, some 60 days of delay were requested or occasioned by King himself.4 * * * Cases such as United States v. Provoo, Taylor v. United States, United States v. McWilliams, and United States v. Chase, cited by appellant, are’not applicable here, because the delays involved in those cases were attributable to the prosecution.’ King v. United States, 105 U.S. App.D.C. 193, 194, 195, 265 F.2d 567, 568, 569 (1959), cert. denied, 359 U.S. 998 [79 S.Ct. 1124, 3 L.Ed.2d 986] (1959). This implies that if the delays involved in the King case had been attributable to the prosecution they would have raised a serious constitutional question. Since the delays in the present case are attributable to the prosecution and in other respects are similar to those in King, that question is before us.
“We answer the constitutional question in favor of the appellant and do not reach his other contentions. Because his right to a speedy trial was denied, the judgment of conviction must be vacated and the indictment dismissed.”
“1. The January 17 ‘jacket’ entry, ‘Contd. to 2-8-62 on mo. of deft, for more time to prepare’, is erroneous. On January 17, appellant’s assigned counsel (1) asked for a continuance of ‘about ten days’ (not 3 weeks) because appellant had planned to retain other counsel and this had delayed assigned counsel’s preparation, and (2) informed the court that the prosecutor ‘would be in trial on another case tomorrow anyhow.’ As the transcript shows, the court made it clear that no part of the continuance of 3 weeks which the court ordered was due to defense counsel’s request for a continuance of about ten days: ‘Let the record show * * * there will he no continuance granted by reason of the appearance of some other counsel.’
“2. Beavers v. Haubert, 198 U.S. 77, 87 [25 S.Ct. 573, 49 L.Ed. 950] (1905).
“3. In Porter v. United States, 106 U.S.App.D.C. 150, 270 F.2d 453 (1959), cert. denied, 363 U.S. 805 [80 S.Ct. 1240, 4 L.Ed.2d 1148] (1960), the prosecution was responsible for continuances which aggregated 46 days (not 102 as here), but the defense was responsible for a continuance of 21 days and the calendar system for one of 24 days.
“4. The court continued : ‘In the third place, King does not allege any prejudice by reason of the delay.’