dissenting:
In Syllabus Point 1 of State ex rel. Parsons v. Cuppett, 155 W.Va. 469, 184 S.E.2d 616 (1971), this Court held that:
One charged with a crime is entitled to be forever discharged from prosecution upon such charge, if he is not tried within three regular terms of court after the term in which the indictment is found against him, unless the failure to try is excused for one of the reasons contained in Code, 62-3-21, as amended. [Emphasis added].
See also Syl. pt. 4, State v. Lacy, 160 W.Va. 96, 232 S.E.2d 519 (1977); Syl. pt. 1, State ex rel. Stines v. Locke, 159 W.Va. 292, 220 S.E.2d 443 (1975); Syl. pt. 3, State ex rel. Wren v. Wood, 156 W.Va. 32, 190 S.E.2d 479 (1972); Syl. pt. 2, Town of Star City v. Trovato, 155 W.Va. 253, 183 S.E.2d 560 (1971). Incarceration in another county, for whatever reason, is not one of the *145exceptions enumerated in West Virginia Code § 62-3-21 (1984 Replacement Vol.). Accordingly, I dissent from the single syllabus of the majority opinion.
Inconvenience to the prosecution is an inadequate reason for departure from our prior authority regarding the fundamental right to a speedy trial guaranteed by the federal and state constitutions. Particularly disconcerting is the majority’s holding that even if an individual is incarcerated under a sentence in one county, the three-term rule is inapplicable if the prosecutor in the county where charges are pending exercises “reasonable diligence” to secure the individual’s return for trial. In this circumstance, the majority’s only rationale for its holding, to prevent frustration of the orderly trial process, wholly evaporates. By definition, the orderly trial process is completed for an individual who is incarcerated under sentence. Potential good faith argument by a prosecutor that he or she exercised “reasonable diligence” after permitting a defendant to languish for three complete terms in another county jail under sentence strains credulity.
From a practical standpoint, the majority opinion also raises the spectre of extended incarceration of innocent persons solely on the basis of their impecuniousness. For example, in circumstances involving three-term circuits, an indigent, unable to post bond, could spend over two years in jail, even in the absence of motion for continuance, and yet be acquitted of both charges. Moreover, extension of the majority’s holding to its logical conclusion creates the possibility, however unlikely, that an indigent simultaneously indicted in fifty-five counties could spend over fifty-five years in jail, even in the absence of motion for continuance, and yet be acquitted of all charges. At some point, the fundamental right to a speedy trial must prevail over the mechanical application of the legislatively created three-term rule in situations involving simultaneous or serial prosecutions in more than one county.
West Virginia Constitution Art. II, § 8 provides that, “Writs, grants and commissions, issued under the authority of this State shall run in the name of, and official bonds shall be made payable to the State of West Virginia. Indictments shall conclude, ‘Against the peace and dignity of the State.’ ” Over one hundred and sixteen years ago, in Syllabus Point 1 of Lemons v. State, 4 W.Va. 755 (1870), this Court held that, “When the constitution of the State requires an indictment to conclude in certain form and words, the indictment is not good unless it concludes in the exact language of the constitution.” West Virginia Constitution Art. II, § 1 provides that, “The territory of the following counties, formerly parts of the commonwealth of Virginia, shall constitute and form the State of West Virginia, viz: The counties of ... Harrison ... Upshur_” Indictment “in the name of ... the State of West Virginia” triggers “the right to a speedy and public trial” under the sixth amendment and the right to trial “without unreasonable delay” under West Virginia Constitution Art. Ill, § 14. In my view, the political subdivision where the indictment is found is irrelevant for purposes of application of this fundamental right.