(dissenting).
I dissent being of the opinion that under the facts of this case the defendant was denied his constitutional right to a speedy trial. In my opinion we beg the question when we conclude that if a defendant has not been injured by such denial he may not *105complain. Probably the result would not have been different in this case had the court refused to appoint counsel to defend, but still the defendant would have been denied his constitutional right to counsel,
A review of the cases involving this point indicates that this court has protected defendants by guaranteeing a speedy trial only when defendants sought a continuance.1
The majority opinion suggests that the provisions of Section 77-51-1, U.C.A. 1953 "are the legislative implementation of the constitutional guarantee of a speedy trial aimed at the prevention of undue delay in criminal proceedings.” I am unable to concede that every defendant whose rights are not violated by the State’s compliance with the above-mentioned section has been secured his constitutional guarantee of a speedy trial. Nor can I concede that the protection of a defendant in his guaranteed constitutional rights is the business of the legislature. It remains for the judiciary to declare if and when those rights have been violated.
It is stated in the majority opinion that there is no indication that the defendant was in any particular hurry to go to trial until the morning of June 5, when he learned that the victim of the offense was not available as a witness. This statement is absolutely unwarranted from the record. Defendant did not object when the trial date was advanced from June 11th to June 5th.
Section 77-51-1 contains the provision that the court need not give- a defendant the protection of that section if good cause is shown why the prosecution should not be dismissed.
The majority opinion states, “In the absence of any indication of lack of good faith or of diligence on the part of the state which resulted in a substantial infringement upon the defendant’s rights or in some manner prevented or impaired his ability to defend, the granting of the continuance was well within the trial court’s discretion, and a contrary ruling would have been an arbitrary abuse thereof.” It cannot be gainsaid that there was not due diligence on the part of the State. The district attorney’s office knew on May'21, fourteen days before the subpoena was issued, of the new date for trial. No criticism can be made against the prosecuting witness. The record does not indicate that she would not have been available for June 11, the date originally set. I am unwilling to extend plaudits to the prosecuting officers for failing to notify the principal witness as soon as a change of trial date occurred. There is no indication that the prosecution had concerned itself at all in *106seeing that its witnesses would be available. That office was not taken by any surprise, nor had the witness so far. as the record discloses given the prosecution assurance that she would be available on June Sth. Such lack of concern for defendant, his counsel appointed by the court and witnesses, and for the work of the court calls for no orchids.
In 22 C.J.S. Criminal Law § 486, page 755, under title “Elements necessary to warrant continuance,” it is stated, * * * “Thus, it has been held that the court must be satisfied, * * * that the party applying for it has been guilty of no neglect or laches in endeavoring to procure the attendance of the witness * *
Certainly there was no warrant for the court to grant a continuance' — -the prosecution had shown no diligence and the request for the same was unwarranted.
The defendant’s right to a speedy trial should not have been infringed upon by granting the continuance.
In my opinion the question as to whether the defendant’s right to a speedy trial has been denied must depend upon circumstances. In this case, if the prosecuting witness had been subpoenaed in ample time but was too ill to appear on the 5th, then a balancing of equities would have warranted the court in granting the continuance. But to grant it under the facts here presented was an abuse of discretion and a denial to defendant of his right to a speedy trial.
. See State v. Freshwater, 30 Utah 442, 85 P. 447; State v. Hartman, 101 Utah 298, 119 P.2d 112; State v. Fairclough, 86 Utah 326, 44 P.2d 692.