dissenting.
The opinion of this court as first announced gave effect to a principle of constitutional law which the *576Anglo-Saxon, seven hundred years ago, deemed so vital that he wrote it into the Great Charter. Few of the cherished rights that protect those accused of crime can boast a heritage equally long and illustrious. The most unlettered man in the street, living amid our maze of laws, always has in mind that, if he becomes ensnared in our complex legal system, the State guarantees him a speedy trial. Constitutional rights are not to be apportioned by allotting a large portion to those whose guilt is conjectural, but only a small droplet to those who stand bereft of the mantle of innocence.
It is incumbent upon us to examine closely the justification which is offered for the holding whereby this court on this day reverses its former decision. Those who in the days to come will sit as our successors upon the bench which we now occupy will deem that this was an evil day if we now become oblivious to the rights of the accused, turn our backs upon Magna Charta and proclaim that a basic protection from the tyranny of the State has faded out of our constitution.
We must not assume that this defendant is the only person whose interests are at stake. Others may languish in jail for periods longer than hers. But let us for the moment forget about the accused. No less a person than William Howard Taft declared, “The administration of criminal law in this country is a disgrace to our civilization.” The principal reason why administration of the criminal law is a disgrace is because of the long delay which attends its enforcement. Normally, a long wait occurs after an accused has been indicted and before he is brought to trial. The most practical way to rid the criminal law of its disgrace is to try criminal cases promptly. Soon after our original opinion was announced, the newspapers began publishing items indicating that because *577of the holding in this case courts and prosecuting attorneys were seeing to it that pending cases were set for trial. We were on our way to improvement, but today we lapse back to the condition which caused Mr. Taft to declare, “The administration of criminal law in this country is a disgrace.”
The prevailing opinion holds that, in the purview of constitutional provisions which guarantee speedy trial, a criminal case has no preference over a civil one. A judge who entertains that view will merely count his cases, but will not take note of their nature or relative importance. He will operate like a pieceworker. In that view of the matter, one whose interests are subject to the paralyzing effect of an injunction will fare no better when a docket is set than a litigant such as John Jarndyce of Bleak House. Obviously, if we are justified in our boast that we are civilized and that our courts administer justice, we must hold that the case of a person who is confined in jail upon a murder charge is more important to society than a civil case which involves nothing more than a small mercantile account. When the State assumes a monopoly upon the administration of justice, it must promise to adjudge all cases, whether civil or criminal, promptly. But that it not tantamount to saying that when a judge sets his docket he may blindfold himself and become heedless of the relative importance of the cases. In the setting of dockets, our legislature has decreed that criminal cases are entitled to precedence. Such is the plain mandate of OBS 134.120.
It is no novelty to observe a judge of our circuit court or one of our federal judges dismiss civil cases which were not prosecuted with requisite diligence. In fact, Oregon has legislation upon that very subject: OBS 18.260. The federal rule is Buie 41(b), Federal *578Buies of Civil Procedure, 28 USCA. A recent example of judicial action which dismissed a civil case for want of prompt prosecution is Reed v. First National Bank of Gardiner, 194 Or 45, 241 P2d 109.
The Buies of Criminal Procedure for the District Court of the United States, which were adopted by the Federal Supreme Court upon the recommendation of a committee appointed by that court and headed by Honorable Arthur T. Vanderbilt, contains this provision :
“ * * * if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. ’ ’ Buie 48, Federal Buies of Criminal Procedure, 18 USCA.
That rule is the latest enactment upon the subject of prompt trial of criminal cases. It represents the views of the best elements of the profession. Before the rule was submitted to our highest court, it, as also all the other proposed criminal rules, was debated and analyzed by bar associations throughout the nation. Surely under the rule just quoted no one would claim that delay in the trial of a homicide case was necessary if the trial was postponed by the judge so that he could give his time to cases involving nothing more important than small sums of money.
The prevailing opinion makes much ado over the fact that a constitutional provision which provides for prompt trials cannot be limited by the enactments of the legislature. I had not thought that our former opinion said anything to the contrary. This court would have little difficulty and no hesitancy in declaring unconstitutional a statute which undertook to declare that a trial was timely if it followed the indictment within, say, twelve years. But can we say that the constitutional command would be violated if the legis*579lature should require that a trial he had within a very short period of time? The majority regard the present statutory command as too confining for “present-day conditions.” If the statute had imposed a greater limit upon the State than the constitution countenances, then the majority should strike down the statute. The constitution is no less the source of power for the state than the shield of the accused. If the power of the people to enforce the law is prescribed by a statute, then that statute must yield to the paramount law.
No one claims that the rights established by ORS 134.120 rise to constitutional status so that no succeeding legislature could lengthen the time in which a trial may be brought after indictment. It is my belief, however, that ORS 134.120 measures and gives meaning to the language “without delay”. The statute is constitutional because it sets a maximum time which is comparable with the time allowed, not only in other jurisdictions, but also historically. So long as the statutory command lies within the time known historically and contemporaneously, it will furnish the constitutional standard.
The prevailing opinion, rejecting the standard given by ORS 134.120, says that the criterion of “without delay” is the discretion of the trial court. It furnishes us no test, no guide, no rule whereby we may know that the discretion has been faithfully exercised. It is content to say that the record in this case discloses no abuse of discretion. We are left with no intimation of what an abuse may be. The rule under analysis may work both ways. Let us assume that a person accused of a serious crime has been released upon bail and that the judge repeatedly overrules the district attorney’s applications to set the case for trial. *580Let us suppose that the judge fills his docket with civil cases. Now let us assume that the district attorney, after meeting with the succession of rebuffs, applies to this court for a writ of mandamus directed to the judge to set the case for trial. Can anyone discern in the prevailing opinion any hope that the mandamus proceeding could succeed?
The idea that the duty to try the defendant without undue delay is entrusted to the discretion of the trial judge is not new. It was rejected by this court many years ago. In re Von Klein, 67 Or 298, 135 P 870, was an original proceeding in mandamus. The order sought was to direct the trial court to dismiss a prosecution because the case was not brought to trial within the statutory time. This court quashed the writ on the ground that the remedy by appeal from the order was adequate. The fundamental problem of discretion was handled by Mr. Justice McBride in this manner:
“It is contended upon the argument that the remedy by appeal would not be adequate, for the reason that upon appeal the decision of the lower court could be reversed only for an abuse of discretion ; but the argument is fallacious. Either the defendant had an absolute right to a dismissal upon the facts presented, or the court had an absolute right to refuse. If it was a matter of discretion, and the court exercised that discretion, we have no right to interfere in any event. If, on the other hand, the attempted showing made by the state was not up to the standard required by law, the court was without jurisdiction to try the case, and erred in refusing to dismiss it. It is clear that every question which petitioner seeks to raise by this proceeding could have been raised upon an appeal from the motion to dismiss.”
That holding is ignored and evidently overruled by the one announced today.
*581The prevailing opinion next concerns itself with the statute (now OES 134.120) which was construed in the language just quoted. In the case at bar the time has no doubt passed within which a trial can be held without the invocation of the “good cause” exception which forms a part of OES 134.120.
The opinion written by Mr. Justice Brand gathers together bits of language selected from various decisions in which OES 134.120 has been involved. In some cases, Mr. Justice Brand returned to the original affidavits and records which had been filed in the case. From the excerpts of the decisions which he sets forth it appears that certain phrases have kept on cropping up.
I will now set forth a chronological treatment of the cases in which OES 134.120 was involved, under a belief that a statement of the actual holdings will be more useful and meaningful than a collection of selected passages.
We begin with State v. Breaw, 45 Or 586, 78 P 896. That decision held that the words “next term” meant the term following the one in which the indictment was returned. The court affirmed the denial of a motion to dismiss the remaining indictments because they were set for trial in the term following the term in which they were found.
In State v. Rosenberg, 71 Or 389, 142 P 624, and State v. Hellala, 71 Or 391, 142 P 624, the indictments were ordered dismissed and the defendants discharged. The affidavit of the district attorney to the effect that he could not reach an agreement with counsel for the defendants as to the time of trial was held insufficient cause for postponement.
State v. Clark 86 Or 464, 168 P 944, held that the illness of one defendant, requiring delay of trial on one *582indictment, and a trial resulting in a hung jury in the trial upon the other indictment, were good cause for continuing the cases to the next term.
In State v. Moss, 92 Or 449, 181 P 347, the court affirmed a denial of the motion to dismiss because of the consent of the defendant.
State v. Bertschinger, 93 Or 404, 177 P 63, sustained the validity of an order which overruled a motion to dismiss. The trial was initially delayed by agreement between counsel and was not set until two months afterward. This court said :
“This case is the usual result of oral stipulations between counsel about which the court is not consulted and which it has not approved, and of the setting of trial without ample notice to opposing counsel. Yet we are convinced that the office of the district attorney acted in good faith and that any apparent delay in the trial of the case was not through the fault of that office. The record shows that thé real cause of the delay was the congested condition of the trial docket and that this case was actually set for trial on the first open date.”
In State v. Bateham, 94 Or 524, 186 P 5, the denial of the motion to dismiss was sustained upon the ground of the insufficiency of the appellant’s showing. Mr. Justice Burnett, speaking for the court, said :
“* * * 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 case. The case made by the state of ‘good cause to the contrary’ 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.”
*583The defense merely recited the number of criminal cases that had been decided.
In State v. Stilwell, 100 Or 637, 198 P 559, the court affirmed the denial of the motion to dismiss on the ground that the delay was caused by the erroneous grant upon the defendant’s application of a change of venue.
State v. Lee, 110 Or 682, 224 P 627, holds everything that the prevailing opinion claims for it and is indeed their oracle.
State v. Goldstein, 111 Or 221, 224 P 1087, affirmed the trial court’s denial of the defendant’s motion to dismiss an appeal from the defendant’s conviction. The continuing order recited that the criminal docket was so congested that it was impossible to try additional eases at the instant term. The decision of 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).”
State v. Barrett, 121 Or 57, 254 P 198, affirmed the conviction, and in so doing declared that the trial court was in a better position than this court to determine whether the defendant had consented to the delay.
Johnston v. Circuit Court for Multnomah County, 140 Or 100, 12 P2d 1027, was an original proceeding in mandamus. The court held that the cause of the delay was the procedure followed by the defendant which included several demurrers, a change of attorneys and a petition for a change of venue.
In State v. Moltzner, 140 Or 128, 13 P2d 347, the denial of the defendant’s motion to dismiss was *584affirmed. The court ruled that it was proper that an audit should be made and held that lack of time was good cause for not dismissing the indictments. As to the showing made, 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 controlling, such impeachment must be made by the court itself.”
In State v. Swain, 147 Or 207, 31 P2d 745, 32 P2d 773, it was held that the defendant’s absence from the state due to his imprisonment in California was good cause for not dismissing the indictment.
State v. Chadwick, 150 Or 645, 47 P2d 232, ordered the indictment dismissed and the defendant discharged. It held that an implied consent was insufficient good cause. The decision declared that when the trial court gives the reason why a case was continued, this court will determine the sufficiency of that reason. It further stated that “lack of time” is not good cause.
State v. Weitzel, 153 Or 524, 56 P2d 1111, and State v. German, 163 Or 642, 98 P2d 6, held, on the authority of State v. Lee, supra, that the continuing order was entitled to absolute verity.
The foregoing are our precedents. The prevailing opinion holds that (1) “lack of time” is a good cause for not dismissing an indictment which was not tried within the time permitted by ORS 134.120; (2) in this case there was a “lack of time”; and (3) the continuing order which recites “lack of time” renders the order *585virtually unimpeachable because the matter is discretionary with the trial court.
The opinion penned by Mr. Justice Brand accords to State v. Lee, supra, controlling effect. The soundness of that decision is essential to the prevailing opinion. Unless the pronouncements in State v. Lee are correct, the prevailing opinion cannot stand.
The indictment in State v. Lee, which accused the defendant of the crime of nonsupport, was returned November 10, 1921. After the indictment had been returned, the defendant was released from incarceration upon his own recognizance. Later, the cause was continued from term to term of court until, finally, on March 13, it was set for trial on March 20, 1922. The orders continuing the case from term to term recited: “because of lack of time on the part of the court to hear and dispose of the same.” March 13, 1922, the defendant moved for a dismissal. According to the decision, “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 eases were heard.” The defendant depended upon the statute which is now ORS 134.120. The motion was denied. In sustaining the order of denial, this court’s decision depended upon the proposition that (1) constitutional provisions which make provision for speedy trial make no distinction between civil and criminal eases; (2) the court’s order continuing the case to the next term of court “because of lack of time” has not been impeached; and (3) setting cases for trial lies within the discretion of the trial court.
Since the holding in State v. Lee is vital to the prevailing opinion, an analysis will now be made of that decision. The latter is comparatively short. The part which is material to this case cited and depended *586upon Ex parte Larkin, 11 Nev 90; State v. Hecht, 90 Kan 802, 136 P 251; State v. Bertschinger, 93 Or 404, 177 P 63; State v. Bateham, 94 Or 524, 186 P 5; 8 RCL, p 72, §26; and 16 CJ 445. Let us now acquaint ourselves with those authorities.
The first of the authorities cited in State v. Lee is Ex parte Larkin. State v. Lee quoted from that decision, and the prevailing opinion fuses the quoted excerpt into itself. By turning to Ex parte Larkin, we observe that Nevada had a statute similar to ORS 134.120. The Nevada court found that the hearing of Ex parte Larkin in the trial court was delayed with good cause. The following paragraph taken from Ex parte Larkin reveals the nature of the good cause, but this paragraph was not quoted in State v. Lee, nor is it mentioned in the prevailing opinion.
“The fact that a disastrous fire had occurred, destroying the court-house and so much of the city of Virginia as to render it impossible for the court to find a suitable room in which to meet, was, in our judgment, sufficient to authorize the court, in the exercise of its sound discretion, to make said orders. Recognizing the unsettled condition of affairs after such a fire, the members of the bar, with but one exception, consented to said orders being made, considering, as they doubtless did, that a public necessity existed therefor.”
Clearly, those facts had no parallel in State v. Lee, and they have no resemblance to anything in the case at bar. Those who esteem constitutional rights and who are loath to see the right to speedy trial frittered away readily recognize that a disaster of the proportions described in the quoted paragraph was good cause for delaying the trial of a case.
State v. Lee next cited State v. Hecht and, concerning it, used this phrase, “to like effect”. The prevail*587ing opinion quotes the part of State v. Lee which refers to State v. Hecht and which employs the phrase “to like effect”. Let ns now turn to State v. Hecht. It was an appeal by the State of Kansas from a dismissal of a prosecution under a Kansas statute which was similar to ours except that it expressly provided that want of time was a sufficient excuse. The court held that the illness of a county attorney might be deemed a sufficient cause for delay, but, going on, interpreted the order which dismissed the prosecution as a finding that the illness did not in fact exist, or that if it did exist it constituted no justification for delay because a deputy prosecuting attorney might have been assigned to conduct the case. The court, in rendering its decision, indicated specific examples of what might be deemed a “lack of time”. We take the following from the decision:
“Guided by this just rule of interpretation we must inquire what is fairly comprehended in that clause of the statute excepting delays occasioned for want of time to try the cause. Circumstances may arise where the postponement of other and perhaps more important cases would leave sufficient time, although such postponements might be attended with great expense and possible failures of justice. The illness of the judge, referred to in cases reported, already cited, may leave insufficient time. Illness of a juror might leave the time too short to finish a trial. These and like contingencies suggest that ‘the time to try the cause’ means such time as should reasonably be given for that purpose consistent with the orderly assignment of causes and the diligent dispatch of business. The right of the defendant is not to be frittered away by an arbitrary assignment of the business of a term, so as to leave too short a time.”
State v. Hecht, therefore, was an instance in which an order of dismissal was affirmed. It does not sustain *588State v. Lee. We have already reviewed State v. Bertschinger and State v. Bateham, the other two decisions cited in State v. Lee.
State v. Lee recites, and the prevailing opinion repeats, language taken from 8 ECL and 16 CJ. Those are worthy treatises, but they were not intended to be used other than as the cases cited in support of them used the language and illustrate its application. Mr. Justice Brand underscored portions of the material which State v. Lee quotes from 16 CJ. To set forth exhaustively in this opinion the cases cited in 16 CJ would occupy an undue amount of space. All of the decisions cited by 16 CJ and 8 ECL have been examined. A reading of them reveals no support for the position taken by the prevailing opinion. They do not authorize a postponement of a criminal case for the purpose of enabling the court to try civil cases. For the proposition, “by delay occasioned by want of time to try the case”, 16 CJ cites only Sample v. State, 138 Ala 259, 36 So 367. In that case, it appeared that the delay beyond the statutory time was caused by the exhaustion of the names in the jury box. Alabama law required the case to be tried before the venire drawn from the jury box and rendered the court powerless to refill the box. Therefore, the trial court could proceed no further in that term of court. As I just said, Sample v. State is the only authority cited by 16 CJ in support of its statement that a delay is justified if it is “occasioned by want of time to try the case.” But 16 CJ also says that delay is warranted if caused “by accumulation of business rendering trial impossible.” In support of that statement, the text cites Commonwealth v. Trost, 21 Pa Dist 1081. There the delay was occasioned by the necessity of making a medical analysis upon the remains of the victim of the pur*589ported crime for the purpose of detecting evidence of poison. In addition, the court found that the motion was not timely since the full time had not elapsed for the trial of the accused. People v. Moran, 144 Cal 48, 77 P 777, is also cited by CJ in support of the statement just quoted. In that case the defendant was indicted jointly with three others. All four moved for separate trials. A California statute provided that unless good cause was shown or the accused asked for a continuance, his trial must be commenced within 60 days after the information against him was filed. The defendant’s trial occurred 62 days after the information was filed. The trial judge, in setting his docket, set first the trial of one Buckley, that is, one of the three jointly accused with the defendant. In sustaining that act, the decision under review reasoned: “The four defendants had demanded separate trials, and if they were tried in the same court, the trials must follow in succession.” Buckley’s trial was set for commencement within the 60-day period. In setting it, the trial judge left vacant, obedient to established custom, the period between Christmas and New Year’s Day. Buckley’s trial was protracted. When its end was envisioned it was inferred that it would conclude Friday, February 7, and thereupon the court set the defendant’s trial to begin Monday, February 10, which, according to the decision, “was the earliest date it could have been commenced unless it had been put down for the preceding Saturday.” But when it was set no one knew that Buckley’s trial would actually conclude Friday, February 7. The court, in sustaining the order which denied the motion for dismissal, held that all of the above was reasonable and that it constituted good cause for the delay of two days beyond the 60-day period. I shall review no further the *590cases cited in 16 CJ. When analyzed, all of them resemble the cases that I have reviewed. They afford, in my opinion, no justification for setting civil cases in preference to criminal ones and thereby postponing the trial of a person who is held in jail upon a non-bailable offense. Nor do they grant the trial judge carte blanche discretion in the administration of constitutional provisions which guarantee speedy trial. They do not invest bim with discretion in complying with the demands of statutes such as ORS 134.120. Compliance with such statutes is mandatory, not discretionary. A part of 16 CJ, which seemingly State v. Lee and the prevailing opinion overlooked, reads as follows:
“* * * But the want of time and the pressure of business on the part of the prosecuting attorney, or the mere statement of the judge that the court has been engaged otherwise, * * * is not ‘good cause to the contrary,’ within the meaning of that phrase.”
I revert again to the authorities cited in State v. Lee. It will be recalled that it quotes a passage from 8 RCL, p 72, § 26, and that the prevailing opinion reproduces that quotation. A reading of RCL shows that it relies largely upon a note in 85 ASR 187. Examination of the cases cited in the note indicates that the nearest approach to the situation before us is in instances in which the trial court’s docket was clogged with criminal, not civil, cases. A part of 8 RCL, § 26, which is quoted in neither State v. Lee nor in the prevailing opinion is this:
“ * * * A statute providing that one accused of a crime shall be brought to trial within a specified time, where delay is not attributable to the prisoner’s act, is mandatory and imperative in its provisions, and confers no discretion on the court. *591Hence the accused is entitled to his discharge after the lapse of time prescribed by law, where he was not tried, if he brings himself within the statute by showing that he was not in fault and that he did not apply for a continuance, and where the prosecution shows no valid cause for the delay.”
That language is repeated verbatim in 14 Am Jur, Criminal Law, p 861, § 136.
From the foregoing, we observe an utter dearth of support for the holding in State v. Lee. The very authorities which it summoned to its aid refused to respond. Some which it cited held to the direct opposite of the conclusion to which State v. Lee came. Mr. Justice Brown, the author of that decision, rendered long and meritorious service to the people of Oregon, first as District Attorney, then as Attorney Genefal and, finally, upon the bench of this court. Experience indicates that even the best of judges once in a while err. As we have seen, State v. Lee is unsupported by authority. Its broad pronouncements cannot stand the test of reason. Moreover, we know from the teaching of experience that when the accused has shown, as she did in this case, that she was not responsible for the delay, it is just to put the burden upon the State to prove good cause for the failure to try the case in the next term of court. Experience also teaches that if the State is permitted to justify the delay by showing that the judge was engaged in the trial of civil cases or in office work [as the prevailing opinion intimates], the accused can never hope to succeed in availing himself of his constitutional right to a prompt trial. If such excuses are to be accepted, constitutional provisions and statutes awarding prompt trials may as well be repealed.
*592State v. Weitzel, supra, and State v. German, supra, cannot supply the fundamental soundness to sustain the law announced in State v. Lee. Although language similar to that in State v. Lee can be found in cases cited in it, the holdings in terms of the underlying facts do not furnish support for its broad doctrine. Consent was found to be a factor in State v. Clark, supra, State v. Moss, supra, and State v. Barrett, supra. Additional factors in State v. Clark, supra, were that in a previous trial a disagreement occurred and the defendant became ill. State v. Stilwell, supra, and Johnston v. Circuit Court for Multnomah County, supra, were based upon the dilatory procedure employed by the defendants which resulted in the delay. State v. Swain, supra, depended upon the absence of the defendant from the jurisdiction. Those cases were based upon causes that are fundamentally different from a lack of time resulting from the setting of civil cases in lieu of the accused’s criminal trial.
The remaining four cases, which held that the prosecution should not be dismissed, turned upon the failure to show that good cause was lacking rather than holding that the claimed events, if true, constituted good cause. State v. Bateham, supra, indicated that the defendant should have shown that there were days when the cause could have been heard. The showing of the mere number of criminal cases heard during the prior terms was deemed insufficient. State v. Bertschinger, supra, declared that there was no open date when the cause could have been heard and that the case was actually set down on the first open date. State v. Goldstein, supra, held that when the order recited that the criminal docket was congested, and no proof to the contrary was offered, the order would be taken as a verity against the claim that it was made without notice *593and opportunity to rebut. In State v. Moltzner, supra, delay was deemed proper in order to enable the State to complete an audit.
The farthest that the cases last cited go in the direction of the prevailing opinion is to hold that the showing made by an accused in support of his motion to dismiss must impeach the order of the trial court which recites lack of time, and also prove that there were days when the case could have been heard. The statement in State v. Moltzner, supra, that the order is taken as an absolute verity should not be misunderstood. That opinion clearly indicates that the attack upon the order should be made in the trial court. A motion to dismiss the indictment because of failure to try in the next term and charging the absence of good cause necessarily attacks that order. Because the trial judge decides adversely to the mover does not mean that the order stands sacrosanct. The decision of the trial court can be appealed, and this court will review the decision of the trial court. Obviously, if the order was literally unimpeachable, there could be no appeal from the trial court. Impeachment is dependent upon the showing made at the hearing on the motion.
Our decisions show that this court is ready to justify a delay in the trial of a criminal case when a showing has been made that the delay was caused by some substantial event, such as consent, dilatory tactics by the defendant, or an unimpeached, packed criminal docket. But how can one justify a doctrine such as the prevailing opinion attributes to State v. Lee, whereby an accused’s constitutional and statutory rights are lost to him if the trial judge chooses so to arrange his docket that he cannot hear the case within *594the allotted time? If the courts fail to perform properly their duties, we cannot visit that failure upon the hapless defendant. To support the prevailing opinion, one must assert that all of the cases in Oregon, other than State v. Lee, State v. Weitzel and State v. German, are unsound and that the jurists sitting in other jurisdictions, whose decisions are mentioned in preceding paragraphs, misunderstood the guarantee of a speedy trial and misconstrued statutes similar to OES 134.120. Clearly, State v. Lee as a precedent is entitled to no value.
The opening paragraph of this opinion mentions the fact that the constitutional right under consideration is a venerable one. In Anglo-Saxon jurisprudence it received royal assent when King John affixed his seal to Magna Charta in 1215. Four hundred years later it again received royal approval. At that time Charles I gave his royal assent to the Petition of Eights, penned by none other than Sir Edward Coke, the fountainhead of the common law. The acquiescence of neither King John nor King Charles in those documents was voluntary. But neither could withstand the determined demands of their subjects for assurance that rights, which the succeeding centuries have vindicated, would any longer be trod underfoot. Coke knew whereof he wrote when he penned the Petition of Eights—for seven months he had been imprisoned in London Tower without trial and without being faced with any charge. Those two great charters of Anglo-Saxon freedom have been the inspiration of hundreds of constitutional and statutory provisions which guarantee the accused that he shall not languish in prison for an undue period of time awaiting trial.
The Model Code of Criminal Procedure, written by *595the American Law Institute, contains this provision (§ 292):
“* # * when a person has been indicted, or informed against, for an offense if he is not brought to trial for the offense within - after the indictment has been found or the information filed, the prosecution shall be dismissed upon the application of such person, * * * unless good cause to the contrary is shown, by affidavit, or unless the cause has not proceeded to trial because of the defendant’s consent or by his action.”
A note appended to the section suggests that in the blank space “words appropriate to accomplish the trial or dismissal within about three months should be inserted.” The supplement to the code shows that 31 states have legislation which authorizes the dismissal of the prosecution for failure to try the accused within a stated time. Our three neighboring states of California, Idaho and Washington limit the time to 60 days after indictment. Nevada, the fourth state which borders upon Oregon, has a statutory limit the same as ours.
From the foregoing, we see that the right of an accused to a trial free from undue delay has engaged the attention of constitution writers and lawmakers for more than seven centuries of time. Those friends of justice have realized that unless a limit is placed upon the period within which an accused can be held in jail awaiting trial, liberties will be at the pleasure of the crown or the executive branch of the government. Throughout all of that period of 700 years all realized that the man upon the bench has some discretion in the matter, but none have been willing to subject the right of the accused even to the discretion of the prospective trial judge. The object of the deter*596mined quest was to secure legislation whereby a time limit would be fixed and that, unless the prosecution began within that time or the State made an affirmative showing of inability to do so, the prosecution would be dismissed.
To hold at this late date that compliance with the constitutional and statutory provisions is discretionary with the trial judge defeats the efforts of the last seven centuries of time. Further to hold that a trial judge can delay the trial of an accused beyond the constitutional and statutory limits by filling his docket with civil cases empties the constitution and the statute of their meaning. When the words have been stripped of their meaning, they remain, it is true, but they linger on only as gaunt reminders of effective rights which this day have departed.
I dissent. Our former opinion is without error.
Tooze and Perry, JJ., concur in this dissent.