On Rehearing
BRAND, J.The respondent State of Oregon has moved for a rehearing. In its supporting brief the state presents for our consideration certain propositions not found in its original brief. We granted the rehearing and have reconsidered the case on the merits. In its original opinion this court found it necessary to consider *507only the defendant’s assignment of error No. 1 which reads as follows:
“The Court erred in denying the motions for dismissal of the indictment on the grounds that the same was not tried in the next term of Court from whence the cause was commenced and that there had been a failure of prosecution.”
The decision upon this assignment by a divided court was to the effect that it was the “mandatory and constitutional duty” of the trial court “to dismiss the indictment against the defendant upon her motion for such dismissal.” The case is one of profound importance with much to be said upon both sides of the controversy.
We will first direct our consideration to assignment of error No. 1. A bare record of events chronologically arranged will form a convenient basis for consideration of the facts:
1 January 1952. First term of court, Clackamas County begins.
24 January. Indictment returned against defendant and another.
4 February. Defendant, upon arraignment, pleads “not guilty.”
— February. Codefendant Williams demurs to indictment.
13 February. Demurrer sustained and indictment as to codefendant resubmitted to grand jury.
14 February. District Attorney moves for an order resubmitting to the grand jury the indictment as to the defendant Kuhnhausen.
19 February. Trial court orders resubmission.
20 February. Indictment returned against defendant Kuhnhausen and codefendant Williams.
25 February. Defendant Kuhnhausen pleads “not guilty.”
*50826 February. Defendant’s attorney resigns and new attorney appointed.
4 March. District Attorney writes to circuit court requesting trial date for defendant Kuhnhausen and Williams.
14 March. Defendant files motion for separate trial. Motion allowed.
31 March. Trial court enters general order continuing all cases during first term of 1952 upon the ground “that the Court did not have time to dispose of such cases during the first term.”
1 April. Second term of court commences.
20 April. Trial of codefendant Williams results in conviction.
9 May. District Attorney requests that trial date be set.
30 June. Last day of second term. Court continues all criminal cases not tried to following term on the ground that the court did not have time to dispose of such cases during the second term.
1 July. Third term begins and continues until 7 October.
1 July. District Attorney requests court to set case for trial.
30 July. Defendant files motion to dismiss on grounds “that the same was not tried in the next term of Court from when the cause commenced, and that there has been a failure of prosecution”.
30 July. Hearing held upon the motion. Defendant personally present. Testimony taken and motion denied.
18 August. Defendant moved for dismissal on same grounds as before stated. Motion denied.
18 August. Trial begins. Defendant convicted.
19 August. Defendant renews motion to dismiss.
27 August. Defendant sentenced to life imprisonment.
25 September. Defendant appeals “from that certain judgment entered against her on or about August 22, 1952.
*509The indictment was filed on 24 January. Thereafter a demurrer filed by codefendant Williams was sustained, and the motion for resubmission of the indictment as to the defendant Kuhnhausen was allowed and a new joint indictment was returned on 20 February. The procedure was certainly proper. It is a matter of record and judicial knowledge, and satisfactorily explains about 26 days of the delay. On 4 March the district attorney, by letter, requested that the case of State v. Williams and Kuhnhausen be set for trial. On 14 March the defendant Kuhnhausen moved for a separate trial. If she had not so moved, it is obvious that she would have been tried with her codefendant whose trial took place 20 days after the commencement of the second term of court, the one following the term at which she was indicted. It was her right to make such a motion, and the order directing separate trials was properly made, but that motion and order explains a material portion of the delay. On 31 March, which was the last day of the term in which the indictment was returned, the trial court entered a general order continuing to the next term of court all pending cases. The reason stated in the order was “that the court did not have time to dispose of such cases during the first term”. A similar order on similar grounds was made by the court on 30 June, the last day of the second term. Thirty days after the commencement of the third term the defendant filed her motion to dismiss “on the grounds that the same was not tried in the next term of Court from whence the cause was commenced, and that there has been a failure of prosecution.” A supporting affidavit recited, among other matters, the motion and order for separate trial and the ensuing trial of the codefendant Williams. It also states that “this Court *510has judicially determined and disposed of approximate [sic] thirty-three (33) other criminal cases involving felonies which have arisen since the indictment o.f the above defendant, and that many more other civil eases were likewise judicially disposed of by this Court.” In arguing the motion for dismissal, counsel for the defendant said:
a* * # x realize the Court has an extremely heavy docket, and also I feel that criminal cases, in particular default cases that are non-separable, should have a precedence in trial dates.
*****
“I think the Court’s order also shows, your Honor, that in the period from the time that the defendant was indicted until the present time this Court judicially determined thirty-three other criminal cases, not counting the terrific amount of civil work including trials. Now, in those thirty-three cases, naturally, there were not guilty trials in those thirty-three cases. However, the District Attorney did see fit to carry those cases through to a conclusion, whether there was a guilty plea or whatever it was, or an arraignment, although, I might say, in those thirty-three cases there were arraignments and pleas and everything else together with the business the District Attorney’s office saw fit to carry through to a successful conclusion, although they weren’t carried over from one term to the next. There were thirty-three of those cases.”
Deputy County Clerk Santos testified that since the first of the year the court had been setting cases on an average of two or three months in advance of the trial dates. At the hearing on the motion the court stated for the record:
“* * * the record shows that immediately upon trial of the Williams case being completed, within approximately a week or ten days, there*511after the District Attorney requested the Court to set a trial date in the Kuhnhausen case. I have been set up about two or three months in advance since the first of the year which means that on a request being made on the 9th of May that, as the average prevailed at that time and I have no independent recollection of it, that it would almost necessarily be carried into the next term of court unless I took cases off the docket that were already previously set.
* * * s*
“# * * My recollection is, Mr. Jacobs, that I didn’t set cases on the first of June. I set them on the first of May, and I was set so far in advance that I waited until the first of July because, as I recall, I was set for close to three months in advance at that time.
“It is the opinion of the Court * * * that the conditions of the docket as having been brought out by the testimony of the Clerk, that it would have been necessary to continue this case until the present term of court before it could be tried. For that reason that I believe that, that among other things as shown here is sufficient cause. The motion will be denied. In any event, I think that the record indicates that the District Attorney most certainly made a timely effort to have the case set. Of course, the Court sets these cases in its own judgment, and I think the condition of the docket as shown here bears out the fact that it could not very well have been set prior to this month of Court without taking cases off the docket that were previously set some two months. * *
The motion to dismiss was denied. The case was called for trial on 18 August. The defendant, by her counsel, stated that she was ready for trial, and then repeated her motion to dismiss, which was denied without further evidence or argument. After examination of the jury the defendant renewed her motion to dismiss upon *512the same grounds as before. The court,- in denying the 'motion, said:
“The motion is denied, Mr. Jacobs, for the reason that the volume of business transacted by the Court was such that an earlier trial could not be set owing to the fact that cases had been previously set prior to the District Attorney’s application which was timely, which made it impossible to try it in the term of Court following her indictment and plea. * * *”
The Oregon constitution provides in general terms:
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” Constitution of Oregon, Art I, § 10.
The next section of the Bill of Eights (Art I, § 11) specifically enumerates the “Eights of accused in criminal prosecution: ” No mention is made to the right of a speedy trial. That right, insofar as it emanates from the constitution, depends upon the provisions of Article I, section 10, supra. As its terms imply, Article I, section 10 applies to both civil and criminal cases. Hooton v. Jarman Chevrolet Co., 135 Or 269, 293 P 604, 296 P 36; Hough v. Porter, 51 Or 318, 449, 95 P 732, 98 P 1083; State v. Lee, 110 Or 682, 224 P 627.
It is, of course, clear to all that the mandate of the constitution must not be violated. The question at issue relates to the meaning and application of the constitutional mandate and the relation of our statutory law thereto.
We first consider what is the effect of the constitutional mandate considered without regard to any *513statutory provisions. We quote with approval from the original opinion in this case:
tt* * * Wholly apart from the statute, the constitutional right of an accused person to a speedy trial contemplates a trial conducted according to fixed rules, regulations, and proceedings at law, free from vexatious, capricious, and oppressive delays. The right is consistent with delays, and, in the final analysis, whether such a speedy trial has been afforded must be determined in the light of the circumstances of each. particular case ■ as a matter of judicial discretion. * * *”
The statement is in substantial harmony with the holding in Johnston v. Circuit Court, Multnomah County, 140 Or 100, 103, 12 P2d 1027, where it is said:
tt* * * Spee(iy trial is one conducted according to fixed rules, regulations, and proceedings of law free from vexatious, capricious, and oppressive delay created by the ministers of justice * ■ # #
To the same effect see State v. Lee, supra; State v. Swain, 147 Or 207, 214, 31 P2d 745, 32 P2d 773; State v. Clark, 86 Or 464 at 473, 168 P 944; Pines v. District Court, 233 Iowa 1284, 10 NW 574. The point need not be labored further for the defendant relies upon the same rule in her brief.
In State v. Harris, 101 Or 410, 415, 200 P 926, the court said:
“* * * The constitutional provision for a speedy trial was not intended to provide a loophole for the escape of one accused of the commission of an offense without trial when the same is had within a reasonable time. * * *”
In State v. Breaw, 45 Or 586, 588, 78 P 896, the court describes the constitutional provision as giving *514“the right of a defendant in a criminal action to a trial as soon after the information or indictment is filed as the prosecution can with reasonable diligence prepare for the trial, and the delays growing out of the established method of procedure will permit * * *.” The relevant statute provides:
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown.” OES 134.120 (OCLA, § 26-2002.)
In our original opinion we were moved by certain language from the decisions of our own and other courts to say that the constitutional requirement that justice shall be administered without delay “permits legislative definition to some extent”, and we added that such statutes “constitute a legislative construction or definition of the constitutional provision # * *.” (Italics ours.) We then went further and said, “This statute constitutes the legislative construction and definition of the constitutional provision * * *” (emphasis ours), and on this basis we held that the statute must be read into and considered a part of the constitutional guaranty. In support we cited State v. Swain, supra, 147 Or 207, 31 P2d 745, 32 P2d 773. In that case we said of the statute only this:
“The purpose of section 13-1602 is to carry into effect the guaranty embodied in Article I, section 10, Oregon Constitution, that ‘justice shall be administered * * * without delay * *.' State v. Lee, 110 Or. 682 (224 P. 627); State v. Putney, 110 Or. 634 (224 P. 279).”
Courts have repeatedly used similar language. In State v. Clark, supra, 86 Or 464, 168 P 944, we said *515the statute was enacted “pursuant” to the constitutional provision.
Counsel for the defendant cites State v. Putney, 110 Or 634, 224 P 279, as holding that the legislature may define the constitutional provision “to some extent.” The court in that case did not go even so far. It merely said that the statute was enacted “to carry out that constitutional guaranty.” 110 Or at 645.
In State v. Chadwick, 150 Or 645, 648, 47 P2d 232, we said that the statute was enacted “in order to carry out this provision of the state constitution.” Neither State v. Swain, supra, nor the other cases cited supra go to the extent of saying that the statute must be “considered a part of the constitutional guaranty.” Of course, the statute was passed to carry out the requirement of a speedy trial, but that does not necessarily mean that the statute becomes an integral and binding part of the constitution. Speaking of the nature of the constitution, Chief Justice Marshall, with profound wisdom, said:
“* * * Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.” M’Culloch v. The State of Maryland, 4 Wheaton 316, 4 L ed 579, 601. (Italics ours.)
*516Constitutions are not adopted to control the rights and procedures of the moment but to establish broad principles of justice and fair play for all time.
We hold that extreme caution should be exercised in reading into a constitutional provision which is couched in general terms, the specific and detailed provisions of a statute enacted by the legislature pursuant to the constitutional guaranty.
In State ex rel. Ricco v. Biggs, 198 Or. 413, 430, 255 P2d 1055, this court said of the rights established by the constitution:
“* * * The duty of seeing that they are protected and preserved inviolate falls squarely upon the- shoulders of the judiciary. The performance of this duty is one of the inherent powers of the court, a power which the legislature can neither curtail nor abolish.”
In our original opinion in the pending case we also said:
“In what we have said, we do not wish to be understood as holding that in every case - the constitutional right of an accused person to a speedy trial will be satisfied by setting the trial in the next term of court following the term in which the indictment was returned. * * *”
The quoted statement clearly demonstrates that the statute in question is not a “definition” of the constitutional provision but was merely passed pursuant to it. If the statute were a definition of the constitutional right, then compliance with the statute would of necessity be compliance with the constitution. Of course, the uniform legislative interpretation or application of indefinite constitutional provisions of long standing is. entitled to serious consideration by the courts, though it is not binding upon them. Hawley v. Ander*517son, 99 Or 191, 190 P 1097, 195 P 358; Walker v. Polk County, 110 Or 535, 223 P 741.
In State v. McGowan, 113 Mont 591, 131 P2d 262, the Montana court quoted language from 22 CJS, Criminal Law, § 467, to the effect that statutes passed for the purpose of enforcing the constitutional right constitute a legislative construction or definition of the constitutional provision. The Montana court said:
“* * * We think the application of this rule is correctly suggested in the case of State v. Le Flohic, 127 Minn. 505, 150 N.W. 171, 172, where it is said: ‘Whether a trial is a speedy trial within the Constitution is a judicial question. The Legislature cannot say and does not say that a trial is speedy if had within the time * * * mentioned in the section of the statute quoted. * * * ’ ’ ’
So long as the doctrine of separation of powers remains basic in our system, the ultimate power and duty of the courts to construe the constitution must rest with the courts alone. That power should not be lightly whittled away by any rule which recognizes the power of the legislature to authoritatively construe the constitution. It may be added that if OES 134.120 is a contemporaneous construction and definition of the constitutional provision, there would be equal reason for holding that two other and different statutes which were also passed in 1864 must also be “considered a part of the constitutional guaranty.” We refer to OES 136.070 and OES 136.120.
It has been suggested that there is an exception to the general rule in the case of a contemporaneous legislative construction of the constitution. OES 134.120 is substantially identical to a territorial statute which was in existence when the constitution of Oregon was adopted in 1857. The present statute was enacted in *5181864. Conceding, for the sake of argument, that the legislature had power to bind this court as to the construction of the constitution, it would necessarily follow that the only constitutional provision which the legislature could “construe and define” would be the constitution which was in force at the time that the statute was enacted. Article VII of the constitution as originally adopted provided that “The circuit court shall be held twice, at least, in each year, in each county organized for judicial purposes * * *.” Orig Art VII, § 8, p 238 OCLA. It would seem to follow that if the statute of 1864 construed and defined , the constitutional provision for a speedy trial, the . result would be that a trial is speedy if brought within one year, because the second term of any year, under the original constitution and decisions of this court, continues until terminated by an affirmative judicial act or by the commencement of a new term. Ex parte Harrell, 57 Or 95, 110 P 493; State v. Ryan, 114 Or 91, 96, 97, 234 P 811; Deering v. Quivey, 26 Or 556, 560, 38 P 710. We hold that the statute requiring dismissal for failure, without good cause, to prosecute at the next term of court after the indictment, is not and cannot be a binding legislative definition of the present constitution as amended in 1910 which contains no provision whatever as to the number of terms which shall be held in any county.
Under statutory provisions, there were twelve counties in Oregon having only two terms; six having four; and one having ten terms a year. The remaining counties had three terms annually. ORS 4.110 to 4.270. If we should hold that the statute is to be deemed a part of the constitutional provision concerning speedy trial, the result would be that in some counties of the state a defendant would be given a speedy trial if *519tried within one year, while in other counties, notably Multnomah, he would be denied his right to a speedy trial if the cause were not tried within 60 days or less, depending on the time of the month at which the indictment was filed and the time in the second month at which the trial was had. The irony of the situation would be found in the fact that the period within which a defendant could be tried would be the longest in the rural counties where the pressure of business is the least, and the shortest where the docket is most congested. Constitutional provisions do not operate in that manner. The courts are extremely reluctant to hold that constitutional rights have been waived, yet this court had no hesitancy in holding that a defendant who failed to assert his rights under the statute, in the lower court, waived his right to make such a motion. State v. Chapin, 74 Or 346, 144 P 1187; State v. Moss, 92 Or 449, 181 P 347.
In People v. Hartman, 408 Ill 133, 96 NE2d 449, a proceeding was brought under the Illinois Post-Conviction Act (Ill Rev Stats, 1949, ch 38, par 826, et seq). It was the contention of the petitioner that he was entitled to a discharge because of an alleged violation of his constitutional rights in that he was not brought to trial within four months from the date of his commitment. Ill Rev Stats, 1949, ch 38, par 748. The court said:
“It should be here noted that this statute providing for hearing after conviction is limited to constitutional questions and the denial of constitutional rights. * * *”
In its opinion the Supreme Court of Illinois clearly distinguished between the violation of the constitutional right to a speedy trial, on the one hand, and the violation of a statute which was passed for the *520purpose of implementing constitutional provisions, on the other. The court said:
“It is to he observed that the statute was enacted to give effect to section 9 of the Bill of Bights, securing to an accused in a criminal case a speedy trial. The constitution does not fix the time, and the statute is only intended to implement the provisions of the constitution, but a violation of the statute or of the procedure under the statute does not in itself create a constitutional question. People v. Maniatis, 297 Ill. 72, 130 N.E. 323.”
Speaking of the constitutional provision, the court said:
“* * * This constitutional requirement of a speedy trial has always been considered as a guarantee only against arbitrary and oppressive delays. People v. Utterback, 385 Ill. 239, 52 N.E.2d 775; People v. Maniatis, 297 Ill. 72, 130 N.E. 323; Weyrich v. People, 89 Ill. 90. * * *”
We hold that the first question for determination is whether the constitutional right to a speedy trial was accorded to the defendant. That phrase, as used in constitutions, has received repeated judicial construction. The question is whether the proceedings were free from “vexatious, capricious, and oppressive delays, created by the ministers of justice.” State v. Clark, supra, 86 Or 464, 168 P 944. The determination of the issue is for the trial court, in the light of all of the circumstances in the particular case, and in the exercise of judicial discretion.
The authorities support our statement in the original opinion here that “Wholly apart from the statute * * * whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a matter of judicial discretion. * * *” In view of the decisions of this *521court construing the constitutional requirement of speedy trial and the rule of judicial discretion on the part of the trial court, reversible only for the abuse thereof, we hold that the evidence fails to present any abuse of discretion violative of constitutional right on the part of the trial court. The authorities concerning abuse of discretion as the only ground for reversing the judgment of the trial court will be fully set forth in our consideration of the meaning and effect of the statute ORS 134.120.
THE RULE OP DISCRETION AND ABUSE OF DISCRETION
Before determining whether we should reverse or affirm the order of the trial court denying the motion to dismiss, we must ascertain the nature of the duty of that court and the function of this court in reviewing such orders under the provisions of the statute ORS 134.120.
In State v. Bateham, 94 Or 524, 186 P 5, this court said:
“* * * The case made by the state of ‘good cause to the contary’ appeals largely to the discretion of the trial court and we are not prepared to say from the record before us that the discretion was abused in this instance. ’ ’
In State v. Breaw, supra, 45 Or 586, 78 P 896, this court said:
“The court has authority to postpone a trial of a criminal cause until another day in the same term, or to another term, upon the statement of the district attorney (B.&C. Comp. § 1379), and its action in so doing cannot be reviewed on appeal, except for an abuse of discretion: State v. O’Neil, 13 Or 183 (9 Pac. 284).”
*522In the early case of State v. O’Neil, 13 Or 183, 185, 9 P 284, this court, by Justice Lord, announced the rule concerning either the granting or refusing of a motion for continuance as follows:
“* * * From the nature of things, the court below is placed in a much more favorable position to see the case in all its connections, and is therefore better fitted to decide the propriety of the application, than the appellate court; and unless the decision is manifestly wrong and arbitrary, involving an abuse of sound discretion, this court will refuse to reverse it.” Citing cases.
In State v. Van Waters, 36 Wash 358, 78 P 897, 898, the same rule was applied and the court added:
“ * * * In matters in which the trial court is vested with discretion, error is never presumed, but, to be available, must appear on the face of the record.”
In State v. Barrett et al., 121 Or 57, 59, 254 P 198, this court said:
“* * * In passing upon motions preliminary to trial where questions of fact are involved, the trial court is in a better position to determine the fact than an appellate court, and for that reason, such questions of fact are not open for review upon appeal unless the error is palpable and there has been a clear abuse of discretion.”
In Johnston v. Circuit Court, Multnomah County, supra, 140 Or 100, 104, 12 P2d 1027, we said:
“This court will not review the trial court’s finding that the indictment should not be dismissed, for the reason that the defendant consented to the postponement of the trial, or that there was good cause shown why the indictment should not be dismissed unless error is palpable and there has been a clear abuse of discretion: * * *”
*523In State v. Lee, supra, 110 Or 682, 224 P 627, cited by tbe defendant on this point, tbe question determined was whether the discretion vested in the trial court in making a general order continuing cases because of lad? of time to hear and dispose of the same showed an abuse of discretion. It was held that there was none.
Turning now to the provisions of the statute, we all agree that if a court, without cause, fads to bring an imprisoned defendant to trial at the next term of court after the indictment, he loses all discretion to continue the case. Such is the purport of State v. Clark, supra, cited by the defendant. But that is not the question here. Our question is whether the court abused its discretion in finding that there was good cause shown. In our former opinion we said that the case of State v. Lee “might well be misunderstood and create some confusion.” A full examination of the original transcript and briefs in that case compels the conclusion that we failed to accord to the opinion in that case the controlling effect to which it was entitled.
In State v. Lee, supra, the defendant supported his motion for dismissal by an affidavit which negatived any consent by him to any continuance. A counter affidavit stated that criminal cases in which the indictment had been returned before the indictment of Lee, and all criminal cases in which defendants were held in custody, had been given precedence. The affidavit recited the general orders continuing pending cases at the end of each term, and stated that the delay was due to the congestion of the trial docket. The counter-affidavit failed to disclose whether the congestion was due to civil or to criminal cases. Circuit Judge Bobert Tucker denied the motion. Answering the claim of *524the state that the docket was congested, counsel for appellant, in his brief on appeal, said:
“* * * A congestion of the civil trial docket in the Court below is a condition we have always with us.”
In State v. Lee one of the affidavits referred to the 5y2 months which had elapsed between the indictment and trial and stated that six regular trial judges and most of the time two outside judges had been sitting in Multnomah county. He further listed the only days on which criminal cases were set and the days on which no criminal cases were set, and stated that there were many days during December, January and February on which the case could have been tried. The claim that a congestion of civil cases furnished no good cause for continuing criminal cases was placed directly before the trial court, and before this court by the record. This court said:
“The showing made by the defendant discloses that a number of days in the terms of court were permitted to pass in which no criminal cases were heard.”
The court then recited the general orders continuing cases, and said:
“The force of this order is not overcome by anything of recoid. The law does not give criminal cases the ‘right of way.’
*****
“The right guaranteed by our fundamental law for a ‘speedy’ hearing applies alike to civil and criminal causes. * * *”
Concerning the general orders continuing all pending cases, we said:
“In the case at bar we have seen that the court made a general order continuing all cases until the *525succeeding term, for lack of time in which to try them. The presumption is that the continuance was properly ordered: Johnson v. State, 42 Ohio, 207; State v. Mollineaux, 149 Mo. 646 (51 S.W. 462); Nichols v. Commonwealth, 91 Va. 741 (21 S.E. 364).”
The court said:
“In the case of Ex parte Larkin, 11 Nev. 90, 95, the court, by Hawley, C.J., after stating the principle that every defendant held on a criminal charge is entitled to a speedy trial which should not be denied him proceeds to say:
_ “ ‘But it does not necessarily follow that such trials are to be held regardless of the public condition of affairs that exists where the court is held. Ordinarily, the defendant is entitled to his trial as soon as it can properly be reached in its regular order upon the calendar, and the prosecution has had a reasonable time to prepare for the trial; but unforeseen events are liable to occur, making it absolutely necessary for a court to continue cases, even on its own motion; and whenever such events do occur, and the necessity for such order is clearly apparent, its power to so continue the case is undoubted.’
‘ ‘ To like effect, see State v. Hecht, 90 Kan. 802, 805 (136 Pac. 251).
“It is said by the editors of Ruling Case Law that:
“ ‘A delay made necessary by the usual and ordinary procedure provided by law in criminal cases is, of course, permissible. * * * Some events are not unlikely to occur, making it absolutely necessary for a court to continue cases, even on its own motion; and whenever such events do occur and the necessity for such order is clearly apparent, its power—at least in most states—so to continue the case is undoubted. Instances of such events are, want of time during the remainder of a *526term to try the ease on its merits; or the engagement of the judge in the trial of other cases, which extend beyond the time limited by law for holding the court * * *.’8 R.C.L., p. 72, § 26.
“ .‘A defendant’s constitutional right to a speedy trial is not contravened by continuances in the discretion of the presiding judge; by hearing civil cases in advance of criminal cases, in the absence of a statute prohibiting it; by hearing another case having precedence over that of the accused; by delay occasioned by want of time to try the case; by accumulation of business rendering trial impossible; * * * or by other unavoidable circumstances.’ 16 C.J. 445, 446.
“To similar effect is the doctrine announced by this court in the cases of State v. Bertschinger, 93 Or. 404 (177 Pac. 63); State v. Bateham, 94 Or. 524 (186 Pac. 5.).” (Italics ours.)
Finally the court said:
“The discretion vested by law in the trial court has not been abused. The order of the court continued all cases, civil and criminal ‘because of lack of time on the part of the court to hear and dispose of the same.’ The verity of this order has not been overthrown.
“Under the facts in this case, the court’s order constitutes ‘good cause,’ within the meaning of Section 1701, Or. L.”
The state made no contention that the congestion of the docket was caused by criminal cases alone. In denying the motion, Judge Tucker was not so naive as to assume that in 5% months the seven circuit judges in Multnomah county had not tried a single civil case. Both he and this court undoubtedly knew the contrary to be true. State v. Lee, supra, has been cited with approval in Johnston v. Circuit Court, Multnomah County, supra, and State v. Swain, supra. It *527was also cited with approval in State v. Moltzner, 140 Or 128, 13 P2d 347; State v. Weitzel, 153 Or 524, 56 P2d 1111; and State v. German, 163 Or 642, 98 P2d 6. In the last three eases the opinions of this conrt cited State v. Lee, supra, in support of the general proposition that lack of time is in itself good cause for not dismissing the indictment. In the Weitzel and German cases the court said that the question is “settled and foreclosed” by the cases cited. The statement in the Lee case that the constitutional provision for speedy hearing applies alike to civil and criminal cases was expressly approved in State v. Clark, supra, 86 Or 464 at 471.
In State v. Barrett et al., supra, 121 Or 57, 254 P 198, the indictment was returned in May, 1925, in Multnomah county. The trial was at the December term. On 14 December the defendant moved for dismissal and by affidavit stated non-consent to any postponement, and that there was no good reason for the failure to try him. Another affidavit, based on the contents of the criminal fee book showed that during June, September, October and November, 38 criminal jury eases were tried, and that there were days when a jury was obtainable and the case could have been tried. The counter affidavit is directed only to the point that the defendant agreed to the postponement. On appeal this court recognized that the only controverted issue related to the question of consent. It said:
“* * '* In denying the motion the court must necessarily have found that defendant did consent to the postponement of the trial and from the showing made, the evidence was sufficient to sustain such finding and to warrant the court’s denial of the motion. * # *”
*528In onr original opinion we inadvertently cited the Barrett case as holding that where the record shows the cause that existed for continuance, the Supreme Court will consider whether the reason found is sufficient. We did not intend to imply that the issue was to be tried de novo in this court. In the Barrett case the order of the trial court merely recited that the motion for dismissal was denied. The court set forth no reasons in its order and then clearly laid down the rule which we have previously copied verbatim to the effect that when questions of fact are involved, the trial court is in a better position to determine the issue than the appellate court, and that such questions of fact are not open for review unless the error is palpable and there has been a clear abuse of discretion. The case was decided upon that issue.
In State v. Bateham, supra, 94 Or 524, 186 P 5, the defendant was indicted in Multnomah county on 30 June 1918 and tried on 20 December. On 4 December the defendant moved for dismissal and filed the usual sworn statement of non-consent to the continuance. In that case the defendant presented sworn testimony based upon the records which showed that only 28 criminal jury trials were tried within the county during the five months following his indictment. During one month no jury cases were tried because of an epidemic of influenza. At least six circuit judges were sitting in that county during this period. Thus the record shows that if criminal cases only were tried during the four months of delay, the average case per judge would be about five, or about 1% cases per month. The state presented evidence that under the rules of court, criminal and civil trial dockets were called, and cases set for trial in the order of their entry, with certain exceptions. This certainly raises *529a strong inference that some civil cases were set for trial between 1 Angnst and 20 December. The record made it apparent that if the docket was congested, it was not solely because of criminal cases, and of course the court, counsel, and this court knew that civil cases were tried during this period. On appeal this court, with the record before it, recited the showing by the state that the docket was so crowded with cases at issue and for trial that it was impossible to reach the defendant’s case earlier. "We recited the general orders continuing cases which were made at the end of each term, and commented upon the one month when no trials were held. We then said:
“* * * Qn contrary we have lately decided in substance in State v. Bertschinger, 93 Or. 404 (177 Pac. 63), that an accumulation of undetermined cases is sufficient to prevent the discharge of the defendant, and this doctrine is supported by paragraph XI of the extended note to Ex parte Begerow in 56 L.R.A. 513. We cannot draw a conclusion favorable to the defendant from the fact that only seventy criminal cases were tried in the Multnomah Circuit Court during the period mentioned in the affidavit on that subject. To aid the Fabian policy of the defense, the showing of the state ought to be combated by sworn statements disclosing that there were times during the terms succeeding the return of the indictment when the court could have heard this ease. * * *”
After examining the record before the court we held that the issue was whether there was any abuse of discretion, and none was found. There is not a syllable in the record or opinion to indicate that the accumulation of undetermined cases consisted of criminal cases only. Common sense tells us that it did not.
In State v. Moltzner, supra, 140 Or 128, 13 P2d 347, *530four indictments were filed on 13 August 1931. On 17 November defendant moved for immediate trial of each or any of such indictments. On 20 November the deputy district attorney filed an affidavit showing the necessity for the completion of an audit of the accounts of a building and loan association, which audit had been in preparation ever since the return of the indictment, and which was not yet completed. The affidavit showed that the audit would be completed within two or three weeks and that counsel for defendant had also requested an audit. The affidavit concluded with a request that the case be set for a day certain in the month of January. On 24 November the defendant moved for the dismissal of the four indictments, relying upon the statute. On the same day the court made an order reciting the necessity for the audit of the books and that said audit would be completed in about three weeks, and setting the case for trial on 4 January 1932. On 30 November the court made an order finding that good cause had been shown; why the indictment should not be dismissed; and denying the motion for dismissal. On 21 December the defendant filed a second motion to dismiss, which was denied on the same day. On appeal this court considered the affidavit of the deputy district attorney concerning the necessity for an audit, although that affidavit had been made before the motion to dismiss was filed. The court said:
“Affidavits were displayed by counsel for defendant at the argument of this case to the effect that the orders of continuance made at the close of each term, as aforesaid, were entered pursuant to a practice which had prevailed for many years and that no judge had informed affiants that such order had been made. This is entirely insufficient to impeach the record of the court. In order to be con*531trolling, such impeachment must be made by the court itself.”
On the merits it was held that “The character of the case supports the state’s contention that the audit was essential * * *. The statement, that lack of time on the part of the court required a continuance of the unfinished business, is in itself good cause for not dismissing pending indictments: * * *” In applying the foregoing rule no distinction was made between civil and criminal cases.
In State v. Rosenberg, 71 Or 389, 142 P 624, the defendant was indicted on 19 September 1912 in Clatsop county. Nearly a year and three months later he moved for dismissal which was denied. An affidavit of the district attorney stated that the defendant could have been tried at any of the terms of court. Since the record affirmatively showed that the court did have time to try the case, the order denying the motion to dismiss was reversed by this court. The facts would appear to present a clear case of the abuse of discretion. The decision does not weaken the authorities which we have previously reviewed.
In State v. German, supra, 163 Or 642, 98 P2d 6, thirteen indictments were returned on 21 April 1937. The cause arose in Multnomah county. On 29 September 1939 the defendant filed the usual motion to dismiss under the statute. The evidence on the motion showed that 64 criminal cases which had been filed after April 1937 were tried before 29 September 1939. In most of the cases so tried the defendants had been at large on bail. The usual continuing orders were made on the last day of each term. All of the cases were for larceny by bailee and involved the same legal issues. One of the thirteen cases was tried, resulting *532in a verdict of guilty; a new trial; and a jury disagreement. The trial court held that the continuing orders were conclusive in the absence of misrepresentation, fraud or irregularity. The motion to dismiss was denied. Substantially all arguments presented in the pending case and some additional ones, were urged upon appeal and upon petition for rehearing. This court held that lack of time to hear pending cases constituted good cause and that the order continuing cases is an absolute verity. All other contentions of the defendant were rejected without discussion.
In State v. Goldstein et al., 111 Or 221, 224 P 1087, a motion to dismiss was made under the statute and was denied. This court referred to the general order made at the close of the term and said that “such entry has been held to be sufficient.”
The case of State v. Bertschinger, 93 Or 404, 177 P 63, is of especial importance. The indictment was on 1 June 1917. Motion to dismiss was on 13 December. The evidence showed that there was a stipulated continuance to the middle of October. It also showed that on September 1, civil and criminal cases had been set for trial up to the 15th of November and later in the same month civil and criminal cases were set for trial until the 30th day of November. The affidavit stated that the case could not be tried during November owing to the congestion of the docket. The motion to dismiss was denied. The fact that civil cases were set for trial during October and November while the Bertschinger case remained untried was before this court on appeal in both the transcript and a printed brief. This court said:
“* * * The record shows that the real cause of the delay was the congested condition of the trial *533docket and that this case was actually set for trial on the first open date.”
In State v. Chadwick, supra, 150 Or 645, 47 P2d 232, the case arose in Harney county where there were only two terms of court a year. The delays were such as would seriously suggest a violation of the constitutional provision even if there had been no statute. The defendant was indicted in November of 1931. In January, 1934 he moved for dismissal. There was consent by the defendant to a continuance “until ‘the next regular term’ ” of court, to wit, April, 1933. The case was not set for the April 1933 term nor for the October 1933 term. In January, 1934, the defendant moved to dismiss. The motion was denied on 7 April 1934, the reason given by the court being based, not upon an exercise of discretion as to facts, but on a misapprehension as to the law. The court held that the continuance had been by tacit consent of the defendant and that the defendant had waived his rights. The court then made a prospective ruling to the effect that by reason of future judicial work to be done in other counties, the court would not have time to try the defendant during the term which continued until October, 1934. The case was then set for trial on 1 October 1934 but was not then tried. On 8 October 1934 the defendant again moved for dismissal and the motion was denied. The trial took place on 15 October 1.934 and the defendant appealed from a conviction. This court observed that the case had gone over for two regular terms (one full year) without consent. We then said:
“Ordinarily this court will not review the findings of the circuit court as to whether such good cause has or has not been shown: State v. Barrett, 121 Or. 57 (254 P. 198). But where the court recites *534in its order the cause that existed why the case should be continued, then this court will consider whether the reason found by the court for the continuance is sufficient upon which to base an order denying dismissal of the indictments.”
The court held as a matter of law that express and not tacit consent was required to authorize the continuance, hence the reason given by the court was insufficient in law. The court also held that the trial court’s order which predicted that the court “will not have time” in the future because of duties in other counties was not good cause. The judgment was reversed and the indictments ordered dismissed. The case bears no resemblance to those in which this court has given weight to discretionary orders of the trial courts, based on their judgment of the facts.
State v. German, supra, 163 Or 642, 98 P2d 6; and State v. Weitzel, supra, 153 Or 524, 56 P2d 1111, were decided after the decision of the Chadwick case. In State v. Weitzel, the opinion of this court shows only that the defendants did not consent to the continuance and that the trial court made the usual order at the end of the term continuing pending eases for want of time to try them. The court said:
“It is the contention of defendants that the orders continuing the case from one term to another were not sufficient to preserve the jurisdiction of the court. Lack of time on the part of the circuit court to hear the case against the defendants, and to dispose of unfinished business, is good cause for not dismissing the indictment against the defendants. This question is settled and foreclosed by the following cases: State v. Chadwick, 150 Or. 645 (47 P. (2d) 232); State v. Moltzner, 140 Or. 128 (13 P. (2d) 347); State v. Goldstein, 111 Or. 221 (224 P. 1087); State v. Lee, 110 Or. 682 (224 P. 627); *535State v. Bateham, 94 Or. 524 (186 P. 5); State v. Bertschinger, 93 Or. 404 (177 P. 63). And it is not requisite that any additional or different reason be given.”
The court quoted ORS 134.120 and ORS 136.070. The last-mentioned section authorizes postponement “upon sufficient cause shown” by the affidavit of the defendant or the statement of the district attorney. The court then said:
“It is clear that the statute was never intended to divest the circuit court of jurisdiction to try a criminal case at a subsequent term when the court did not have time to hear such case at the prior term, and for that reason at the end of the term continued all cases until the next term.”
In State v. Swain, supra, 147 Or 207, 31 P2d 745, 32 P2d 773, this court, by Mr. Justice Rossman, considered the application of ORS 134.110 which provides that:
“When a person has been held to answer for a crime, if an indictment is not found against him at the next term of the court at which he is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary is shown.”
The court then said:
“It will be recalled that February 17, 1932, the defendant was held by the district court to answer to the grand jury, and that during the March, April and May terms of the circuit court the court entered orders which, after stating that good cause had been shown, continued the charge against the defendant to the next term. These orders sufficed to supply the ‘good cause’ required by this section of our laws to prevent dismissal of the prosecution, and are not subject to collateral attack: State v. Moltzner, 140 *536Or. 128 (13 P. (2d) 347). We find no merit in this contention.”
At this point we may well summarize the results of our investigation. The constitutional mandate for trial without delay applies to civil and criminal cases. That mandate is not violated if the case is conducted according to fixed rules, regulations and proceedings, free from vexatious, capricious, and oppressive delay created by the ministers of justice. The determination of that question is to be made in the light of the circumstances of each particular case as a matter of judicial discretion. In the pending case there has been no violation of the constitutional right as thus defined. Of the cases in which the impact of OES 134.120 has been considered, the following support the statement that where questions of fact are involved, especially where the question relates to the congested condition of the docket as ground for continuance, the decision of the trial court is not open to review unless the error is palpable and there has been a clear abuse of discretion. State v. Breaw; State v. Bateham; State v. Lee; State v. Barrett, et al.; Johnston v. Circuit Court, Multnomah County; State v. Chadwick; all supra. The ruling in State v. Moltzner, supra, to the effect that affidavits attacking the general orders continuing cases for want of time are “entirely insufficient to impeach the record of the court” may well be construed as a further support of the same rule. The holding that lack of time to try pending cases constitutes good cause for continuance over the term is supported in State v. Bateham; State v. Lee; State v. Moltzner; State v. Weitzel; State v. German; all supra. The holding in State v. Lee that the constitutional mandate applies to civil and criminal cases alike is supported in State v. Clark, supra, 86 Or at 471. In none *537of these cases is it indicated that the congestion must be of criminal cases only. Regardless of the burden of proof, the evidentiary presumption is that the continuance was properly ordered. State v. Lee, and cases cited therein. The original records in several of the cases which we have reviewed in detail show that this court had before it evidence that civil cases had been tried before the criminal case was set, and in some instances that there were days when no case was tried ; yet the courts have held that the general order continuing cases was controlling and constituted good cause. No decision in this state has ever held that the rule is limited to an accumulation of criminal cases only. The broad holdings of State v. Lee have been frequently cited but never questioned or limited in any subsequent case.
In Oklahoma the statute is similar to ORS 134.120, and in State v. Cole, 4 Okla Cr 25, 109 P 736, 744, the court said:
“ * * * the question as to whether or not the court'erred by giving preference to civil over criminal cases in the term, is one which we need not discuss other than to state that the regulation of the business of the term is a matter exclusively within the control of the district judge. * * *”
We recognize that there is a distinction between the rules governing civil and criminal cases. Civil cases may be continued over one or more terms without good cause, shown, subject only to the limitations prescribed by the constitution, whereas criminal cases can be continued beyond the term following that in which the indictment was brought only on good cause shown. However, there is nothing in the statute which forbids a trial court, in the exercise of sound discretion,.from finding that an accumulation of civil and *538criminal cases already set (as appears in this case) constitutes good cause for continuance of a criminal case. The trial courts are certainly entitled to take notice of the condition of their own dockets. They have considered the entire record in passing upon motions to dismiss, and we too have considered the entire record, though we do so only to determine if there be an abuse of discretion.
We take judicial notice of the fact that trial courts have other and important duties beside sitting on the bench and trying jury eases. The practice of counsel who seek to overthrow the orders of the trial courts has been generally limited to a sketchy showing of the number of days in which the trial judge has sat upon the bench. We know that authorities must be examined; cases previously submitted must be decided within 90 days under the statute; and many quasi administrative duties concerning the handling of judicial business necessarily consume the time of every judge who is conscious of his duties. There are now eleven regular circuit judges in Multnomah county and two in Clackamas county, and we judicially know that one or more judges from other districts are frequently assigned to those counties and that judges pro tern have been serving from time to time. The marshaling of the judicial manpower of the state in an effort to reduce the congested condition of the dockets of Multnomah and other counties has been the avowed policy of the Chief Justices of this court. These are the methods by which the evils of delay may best be overcome.
There are many intricate and difficult problems confronting the circuit courts in the metropolitan areas; cases criminal, civil or special in nature, habeas corpus, mandamus, quo warranto, election cases, injunction *539suits and cases involving constitutional and public questions which must frequently be decided before a legal deadline. We are profoundly convinced that it would be disastrous to lay down a rule under a statute which is not a part of the constitution, providing that all civil business before all of the judges sitting in the district must utterly cease, if necessary, in order that every criminal case in which there is no consent to continuance may be tried during the term following the term in which the indictment was returned, and in Multnomah county, during the month following the month in which the indictment was returned. In determining whether there is good cause for continuance under the statute, it is, of course, the duty of the trial court to consider the desirability that criminal cases be promptly tried, especially when, the defendant is in custody. But this is only one of the matters which the court must consider in arriving at a sound conclusion under all of the circumstances of the particular case. We hold that the record in this case does not overcome the showing and the order which supports the finding of the trial court. There was no abuse of discretion.
This court has not laid down any clear and consistent rule on the issue upon which this court divided in our original decision of this case. The diversity of opinion arose from the view of some that the motion to dismiss was a direct, and of others, that it was a collateral attack on the general order continuing cases for want of time to try them.
In State v. Lee, supra, the continuing order was accorded verity but it was said “the verity has not been overthrown.”
In State v. Moss, 92 Or 449, 460, 181 P 347, this court said of the trial judge denying a motion to dis*540miss: “As he had personal knowledge of all of the proceedings, we think his ruling is entitled to some weight.”
In State v. Clark, supra, a general order continuing cases to the next term was made. We quote:
“ * * * It is argued by defendants’ counsel that no cause was in fact shown. The order of the court, however, is to the contrary and the recital there made and signed by the judge cannot be controverted in the absence of a bill of exceptions relating to the matter:” 86 Or at 473.
The language employed Would indicate that the decision might be reviewed as to abuse of discretion if there had been a bill of exceptions.
In State v. Goldstein et al., supra, 111 Or 221, 224 P 1087, all cases, civil and criminal, were continued over the term. This court said:
“In the absence of any showing to the contrary, and there is none, we assume that this record, made by a court of general jurisdiction, is a verity; and such entry has been held to be sufficient: State v. Bertschinger, 93 Or. 404 (177 Pac. 63).”
In State v. Swain, supra, this court, by Justice Rossman, held that a general order continuing cases for want of time constituted good cause and that such orders are not subject to collateral 'attack.
In State v. Barrett et al, supra, 121 Or 57, 254 P 198, the decision rested alone on the holding that there was no abuse of discretion. There was no discussion concerning direct or collateral attack.
In State v. Gilbert, 55 Or 596, 112 P 436, we held that the judgment roll imports verity and until impeached is conclusive. But in that case the question was what *541the trial court had actually done—not why it had done it. The judgment roll failed to show under which of two indictments the defendant had been tried. The record was the only source of information as to what the trial court had done, and until the record showed that fact, this court was helpless to proceed. In the pending case, however, the question is not whether the court made an order continuing all cases. The question is whether the findings on which the rule was made also import conclusive verity. The same distinction which we have noted concerning the Gilbert case must also be noted concerning Ollschlager’s Estate, 50 Or 55, 89 P 1049, cited in the pending opinion heretofore filed.
In State v. Moltzner, supra, this court said:
“ * * * If such a statement, appearing as it does in the journal of the court, is false, or was inserted without authority, application to correct the entry should have been made to the circuit court. In the absence of any order expunging it, we are bound by it. ‘Until impeached by the court, itself, it imports verity. ’ * * *” 140 Or at 137.
The original records on file in this case show that the contention of the defendant Moltzner was that no order continuing cases had ever been made, and it was that contention which elicited from this court the statement that the record, until impeached by an order “expunging” it, would import verity.
It is clear that if a judicial record recites that an order was made, which in fact never was made, the proper procedure would be to expunge the record. But here again the question is whether it is necessary to expunge the record when the order under attack was actually made and the complaint is that the reasons given for making it were insufficient. The lan*542guage of the Moltzner case unfortunately makes no distinction between the two situations. It occurs to us that it would have been impossible for the trial court to expunge the record in the pending case because the record truly shows the order which was in fact made. The Moltzner case cites Ex parte Jerman, 57 Or 387, 112 P 416, but this court failed to point out that the portion relied upon was found in a dissent. We have never heard of a proceeding to expunge an order which had in fact been made, nor have we known of a proceeding to expunge the reasons given by the court in an order which was in fact made. We think State v. Moltzner which was relied upon in the dissenting opinion herein was sound law. The order continuing did import verity. It constituted sufficient evidence that there was good cause for the order postponing all cases. We expressly held that the continuing order constituted good cause. It is, however, unfortunate that we intimated that a proceeding to “expunge” the order was the only means by which the correctness of the finding by the trial court could be tested.
In State v. Chapin, 74 Or 346, 349, 144 P 1187, the court expressly held that under the code “if the cause was not continued upon proper application, or unless good cause therefor was shown, it was incumbent upon the defendant to make a request to the court for such dismissal and obtain an order granting or refusing the same. * * *” It would be unusual for us now to say that the procedure followed in the pending case could not be employed to test the order because it constituted a collateral attack, when we had held in the Chapin case that the defendant’s rights were waived because he had failed to follow the identical procedure.
*543The Bestatement of Judgments clarifies the somewhat hazy judicial atmosphere concerning the distinction between direct and collateral attacks. We quote:
“The taking of proceedings in the action in which a judgment is rendered to have the judgment vacated or reversed or modified by appropriate proceedings either in the trial court or in an appellate court is a direct attack upon the judgment. * * #
“Where a judgment is attacked in other ways than by proceedings in the original' action to have it vacated or reversed or modified or by a proceeding in equity to prevent its enforcement, the attack is a‘collateral attack.’ * * * ” Bestatement of the Law, Judgments, § 11, Comment a.
“ * * * A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same court; and the fact that other incidental relief is also asked is immaterial. * * *” 49 CJS, Judgments, §408, p 805.
Under the clear distinction drawn by the authors of the Bestatement, and under the authority of the Chapin case, we think that the motion to dismiss which was filed in the action in which the order was entered constituted a proper method of raising the question. To hold otherwise would be to reverse the many cases previously cited in which the issue was raised in that manner. It is also the procedure commonly employed in other jurisdictions.
As stated in.our original opinion, the motion to dismiss constituted a direct attack upon the correctness of the findings of the trial court. When this court has occasionally referred to collateral attack as *544an additional reason for denying motions to dismiss in this type of case, we think it has intended no more than to say that we would not treat the question of good cause for continuance as res integra in this court unweighted by the finding of the trial court, but would consider only whether in deciding the issue, the court had abused its discretion. In thus construing the words occasionally used, we harmonize the numerous decisions which have been based upon the rule concerning abuse of discretion, with the few cases in which the court has intimated that the only direct attack would be a motion to expunge.
The only possible basis for a reversal of the decision of the trial court would be to hold that the trial during the April term of one or more noncriminal matters, before the trial of the Kuhnhausen case, amounted, as a pure question of law, to a violation of OKS 134.120, no matter when the noncriminal cases were set or how important or urgent they were and regardless of the condition of the docket. The statute imposes no such strict rule. We cannot read any such provision into the law and we refuse the invitation to lay down a court-made rule which would disrupt judicial business, especially in Multnomah county. If such a rule were announced, it would of necessity apply in all counties.
We draw the necessary conclusion that since the decision of the trial court was based upon its appraisal of the facts concerning the condition of the docket, the decision must stand. It is not tainted by any abuse of discretion.
It is argued that:
“In all trials for felony the prisoner must be personally present whenever any step is taken by *545the court in his case, and this must affirmatively appear by the record. This right extends to all steps taken in the cause from the finding of the indictment up to and including the rendering of the verdict.”
This proposition is followed by the conclusion that since the record does not affirmatively show that the defendant was present in court when the general order was made on the last day of the April term, it follows that the order is void. We have examined the few cases cited by the defendant and can find no case, whether cited or not, in which any such rule has been applied to general orders continuing all pending cases because of lack of time to try them during the term just expired. Examination of our statutes will disclose that the personal presence of a defendant in a felony case is expressly required at arraignment (ORS 135.110); for the purpose of putting in bail if defendant requires it (ORS 135.190); and on pleading guilty (ORS 135.840). The statute provides that “If the indictment is for a misdemeanor, the trial may be had in the absence of the defendant if he appears by counsel; but if it is for a felony, he shall appear in person.” ORS 136.040. This section clearly refers only to personal appearance at the “trial.” There is no statutory requirement of personal presence at a hearing on demurrer (ORS 135.610); on postponement after the case is at issue (ORS 136.070); or on motion to set aside an indictment (ORS 135.510). The clear implication is that the statute has expressly provided for the defendant’s personal appearance whenever such presence is deemed necessary. Except as otherwise provided, the right to be present applies only to all proceedings at the trial, and even this requirement has been slightly eroded by our decisions. The *546general order continuing all cases was no part of the trial.
In State v. Abrams, 11 Or 169, a murder case, this court said:
“The next objection is, that the court below, on April 19,1883, made an order during his absence setting the trial for a specified future day. But the appointment of a day for the trial to begin was no part of the trial, and was not a matter upon which he could have insisted to be heard, even if he had been present. The objection is clearly untenable.”
In State v. Moore et al., 124 Or 61, 262 P 859, this court, by Justice Rossman, referred to the statute ORS 136.040 which requires the personal presence of the defendant at a felony trial. We reviewed the authorities and said:
“This statute, like the common law, undertakes to assure a defendant charged with a felony that his trial cannot be conducted in his absence. But preliminary and formal matters constitute no part of the trial and are therefore legal even though defendant was not present: * * *”
See also State v. Savan, 148 Or 423, 36 P2d 594; Logan v. State, 131 Tenn 75, 173 SW 443; Kelly v. State, 3 Smedes & M (Miss) 518; Harris v. State (Tex Cr) 28 SW2d 813; Milton v. State, 134 Ala 42, 32 So 653; People v. Ferguson, 124 Cal App 221, 12 P2d 158; Wilson v. State, 90 Okla Cr 180, 212 P2d 172; Rigsby v. State, 55 Okla Cr 61, 24 P2d 1016.
In State v. Moltzner, supra, this court commented upon affidavits to the effect that no judge had informed affiants that such an order had been made, referring to the general orders of continuance. This would indicate at least that no such order was made *547in the presence of the defendant, yet the court said, “This is entirely insufficient to impeach the record -X- # * y?
In State v. German, supra, the right of the defendant to notice and hearing on the proposed general order continuing cases was forcefully presented in the brief of the defendant. We rejected the contention without discussion. A petition for rehearing complained of the failure of this court to consider the point. We denied the petition. The rule of State v. Moore, supra, is supported by reason as well as by authority. We think it would appear a little ridiculous to require that all defendants whose cases are pending and undecided on the last day of a term should be personally brought into court to hear the judge announce that there is no time to try pending cases at a term which ends on the day the order is made. The time at which a defendant has a right to challenge the propriety of the order continuing over the term is at the time when a motion to dismiss is heard.
In State v. Le Flohic, supra, 127 Minn 505, 150 NW 171, the phrase “good cause to the contrary” was held to refer to the cause shown upon the hearing of the motion to dismiss the indictment. The same rule was approved in State v. Kloempken, 145 Minn 496, 176 NW 642. The defendant lost no right to challenge the general order continuing cases. It was reserved to him upon his motion to dismiss. There can be no question concerning the right to challenge the general finding of good cause, by means of a motion to dismiss. It could hardly be argued that the statute would expressly authorize an appeal from an order refusing to dismiss an indictment unless the issue presented by the motion to dismiss could be litigated at the hearing thereof. OES 138.040 expressly *548authorizes an appeal to this court from “an order refusing to dismiss the indictment, as provided in OES 134.120 * * See also 23 CJS, Criminal Law, § 974 b, p 307.
One question which has not been argued by either party requires comment. We have just quoted the material portion of OES 138.040 concerning the right of appeal from an order refusing to dismiss an indictment. Under this statute the orders made in the pending case on defendant’s motions to dismiss on 30 July and 18 August were final and appealable. The only notice of appeal actually filed in this case was from “the certain judgment against her (Kuhnhausen) on or about August 22, 1952”, the judgment of conviction.
In State v. Clark, supra, this court said:
“* * * The neglect to prosecute appeals from the orders made in November, 1916, continuing both cases to the next regular term of the court, is a practice not to be commended. The renewal of the motions, June 11, 1917, their denial, and the taking of appeals from the latter orders necessarily continued the cases until they are finally determined by this court, thereby carrying the causes over two regular terms of the trial court. As all such delays usually conduce to the advantage of a defendant in a criminal action, such procedure is not to be encouraged and will not hereafter be approved unless appeals are seasonably taken from the original denial of a motion for an immediate trial.” (Italics ours.)
See also In re Von Klein, 67 Or 298, 300, 135 P 870; State v. De Grace, 144 Or 159, 164, 22 P2d 896.
In the following Oregon cases the appeals which established the law were taken, not from the final judgment of conviction, but from orders denying the *549motion for dismissal of the indictment under OES 134.120: State v. Breaw, 45 Or 586, 78 P 896; State v. Rosenberg, 71 Or 389, 142 P 624; State v. Hellala, 71 Or 391, 142 P 624; State v. Clark, 86 Or 464, 168 P 944; State v. Stilwell, 100 Or 637, 198 P 559; State v. Lee, 110 Or. 682, 224 P 627; Johnston v. Circuit Court, Multnomah County, 140 Or 100, 12 P2d 1027; State v. Moltzner, 140 Or 128, 13 P2d 347; State v. Weitzel, 153 Or 524, 56 P2d 1111; State v. German, 163 Or 642, 98 P2d 6.
'While we are impressed by the soundness of the view that a party should appeal from the first order denying his motion to dismiss and should not be allowed to put the state to the expense of a trial on the merits while he gambles on the outcome, we have not invoked the ruling of State v. Clark, supra, as being solely decisive in this case because there have been a few cases in which this court has permitted a defendant to present the issue on his appeal from the judgment of conviction.
This brings us to a consideration of the assignments of alleged error at the trial on the merits. Assignment of error No. 2 reads as follows:
“The Court erred in denying the motion for an order requiring that appellant be tried on the original indictment returned against her by the Grand Jury on January 24, 1952.”
In our original opinion we said that this assignment is without merit. On further consideration we adhere to that view. Ex parte Jung Shing, 74 Or 372, 145 P 637; State v. Reinhart, 26 Or 466, 38 P 822; Thompson v. United States, 202 F 401; United States v. Strewl, 99 F2d 474; State v. Janiec, 20 NJSuper 471, 90 A2d 98; Lastinger v. State, 84 Ga App 760, 67 SE2d 411.
*550Assignment of error No. 3 is as follows:
“The Court erred in granting, over appellant’s objections, the State’s request that the witness Wampler be permitted to erect in the court room his own projector and screen, and to project on the screen a number of colored transparencies, (Ex. 17-24 inclusive, and 33) previously admitted in evidence. ’ ’
Counsel for the defendant admitted that “pictures of the scene over there might be relevant” and “material.” He objected upon the familiar ground that the transparencies would be gruesome. The authorities are reviewed in State v. Long, 195 Or 81, 244 P2d 1033. On the authority of those cases we hold that assignment of error No. 3 is without merit.
The last assignment asserts the absence of any substantial evidence of guilt and objects to the refusal of the court to grant a directed verdict. In our original opinion we said that “a careful review of the trial record convinces us that there was substantial evidence to support the verdict * * We adhere to that conclusion.
The former majority opinion in this case is withdrawn and the judgment of conviction is affirmed.