(dissenting).
I would reverse the order of discharge, not on its merits, but with directions that the lower court make specific findings of fact and enter its conclusions of law as a basis for its order. In my opinion, such findings are required by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Holiday v. Johnston, 313 U.S. 342, 353, 61 S.Ct. 1015, 85 L.Ed. 1392; Von Moltke v. Gillies, etc., 68 S.Ct. 316. See also In the Matter of Application of Murra, 7 Cir., 166 F.2d 605.
Considering the case on its merits, however, as the majority have seen fit to do, I dissent. In my view, the judgment rendered by the State court on April 30, 1907, was without authority and of no effect. Such being the case, it is further my view that petitioner’s commitment under such judgment was violation of due process under the Federal Constitution.
The respondent concedes that petitioner was not tried “at some term of the court having jurisdiction of the offense commencing within four months of the date of commitment.” The statute provides under such circumstances that the defendant “shall be set at liberty by the court.” This much is not in dispute, but respondent argues that the court might have acted under a proviso subsequently discussed. Unless the case comes within such proviso, the failure to discharge the defendant is a violation of his constitutional rights. A long line of Illinois decisions has so held. Newlin v. People, 221 Ill. 166, 175, 77 N.E. 529; People v. Emblen, 362 Ill. 142, 199 N.E. 281; People v. Stillwagon, 373 Ill. 211, 25 N.E.2d 795; People v. Stillman, 391 Ill. 227, 228, 62 N.E.2d 698.
As the court stated in the Newlin case, supra, 221 Ill. at page 173, 77 N.E. at page 530: “By the section of the statute in question an absolute right is conferred upon a person charged with crime and committed to and imprisoned in jail, to be set at liberty unless tried within the time limited by that section, except where the circumstances exist which by the provisions of that statute required the court to hold the person for trial. Thus is the constitutional guaranty of a speedy trial made effective.”
Again, as stated in the Stillwagon case, supra, 373 Ill. at page 213, 25 N.E.2d at page 796: “The statute, as defendant points out, is mandatory, cannot be nullified by technical evasions and confers upon an accused an absolute right under the constitutional guaranty to be set at liberty unless tried within the time prescribed, except under the circumstances specified.”
Respondent’s argument for reversal is predicated solely upon two propositions: (1) petitioner failed to show any denial of Federal constitutional rights, and (2) petitioner deliberately and affirmatively waived any rights that he had. The argument in favor of the first point is that the petitioner failed to show that he was entitled to the benefit of the “four-term act.” This argument is based on the proviso contained in the statute, which (as it existed in 1907) stated: “ * * * unless the court is satisfied that due exertion has been made to procure the evidence on the part of the people, and that there is reasonable grounds to believe that such evidence may be procured at the next term, in which case the court may continue the case to the next term.” Respondent does not assert that the court acted within the proviso, but that petitioner has not shown to the contrary and that for aught that is shown by the record the court might have so acted. There was introduced in the court below the common law record, as well as oral testimony relevant to the State court proceedings.
In Illinois the common law record imports verity and cannot be contradicted except by other matter of record. People v. Owens, 397 Ill. 166, 168, 73 N.E.2d 274; People v. Evans, 397 Ill. 430, 431, 74 N.E.2d 708. The common law record (admitted below without objection), so far as pertinent shows that on April 12, 1907, defendant made a motion to be discharged because not tried within four terms of court, that on the same day argument (not evidence) was heard in part and the cause continued until the next day, April 13, 1907, when further argument (not evidence) was heard on defendant’s motion to be discharged. On the same day, the motion was overruled and an exception noted. On April 16, 1907, defendant’s motion to quash the indictment was overruled, his plea of not guilty was *613entered, and his motion for change of venue was overruled. On the same day (the third day after his motion to be discharged had been overruled), the trial commenced.
In my view, this record demonstrates conclusively that the court in overruling the motion to discharge did not act within the proviso of the statute. To come within its scope, the court must be satisfied not only that due exertion has been made by the people to procure the evidence but that there is reasonable ground to believe that such evidence may be procured at the next term, and when so satisfied the court “may continue the case to the next term.” The fact that petitioner was placed on trial the third day after the motion to discharge was overruled leaves no room to suspect, much less hold, that the court either could or did act within the terms of this proviso.
Thus, the common law record needs no aid from a bill of exceptions or from any other source to demonstrate that petitioner was entitled to a discharge. Assuming, as the court held in People v. Utterback, 385 Ill. 239, 244, 52 N.E.2d 775, that the court did not lose jurisdiction at the expiration of the four-month period, it still is the law in Illinois that unless the case comes within the proviso the court has a mandatory duty to discharge the defendant, and a refusal to do so is a violation of a constitutional right. People v. Stillman, supra; People v. Switalski, 331 Ill.App. 31, 72 N.E.2d 447. In the latter case, the court quite pertinent to the instant situation, stated, 331 Ill.App. at page 35, 72 N.E.2d at page 449: “There was no attempt to show that the People were encountering difficulty in procuring evidence and no request was made on behalf of the People for a continuance for the purpose of procuring evidence. When the case was tried, the complainant was the only witness for the People. She resides in Chicago and was available to testify. The defendant brought himself within the provisions of Section 748 and it was the duty of the court to sustain the motion that he be discharged for want of prosecution and set at liberty.”
I do not subscribe to the idea that a court can be “satisfied” as contemplated by the proviso from some notion it plucks out of the air. To think otherwise is to rob the four-term act of all its force and vitality. There must be something in the form of a motion, affidavit or testimony on which the court can predicate its satisfaction. Here, as the record shows, there was nothing but the petitioner’s motion and oral argument. The court was under a mandatory duty under such circumstances to discharge the petitioner.' Its refusal to do so was a violation of his constitutional right and resulted in an illegal and unwarranted deprivation of his liberty.
The oral testimony of the attorney who represented petitioner in the State court proceeding is not only consistent with but supports the common law record. He testified that he was called into the state’s attorney’s office and was told: “This is an awful thing that has happened to this office. If you’ll take the man in and plead him guilty to life we will give it to him.” It is also consistent with the testimony that the trial judge at the time he denied petitioner’s motion for discharge stated: “There is no question about the time he has been here, but I am going to deny your motion.” This witness further testified that there was nothing before the court except petitioner’s motion to dismiss. His attention was called to an affidavit found in the State court file, made by the then state’s attorney, which gave petitioner’s physical condition as a reason why he was not sooner brought into court. The witness testified that this affidavit was not presented or mentioned in the State court proceeding and his first knowledge of it was when it was shown him during the hearing below. This affidavit of the state’s attorney, even had it been presented to the court in connection with the motion to dismiss, would have furnished no justification for the court’s action under the proviso. Any inference drawn from it would be that the state’s attorney was attempting an alibi for his failure to have the defendant brought to trial within the time specified.
The contention that petitioner waived his right to discharge is predicated upon proof that after he was found guilty and a judgment rendered against him, he instructed his counsel not to prepare a bill of exceptions and not to prosecute a writ of *614error. The Utterback case, supra, is relied upon in support of this argument, wherein the court held that the defendant had waived his right to discharge. However, the facts in that case held to constitute waiver are just the opposite of those in the instant case. There the defendant, after making a motion for discharge, withdrew it before the court acted upon it, entered his plea of guilty and was sentenced to the penitentiary. In the instant case, petitioner persisted in his right to discharge until an adverse ruling was made, stood trial and was found guilty. The court in the Utterback case indicated that the defendant in the absence of such waiver would have been entitled to discharge. It stated, 385 Ill. at page 241, 52 N.E.2d at page 776: “In the absence of a showing justifying the delay, the facts set forth in the motion should have entitled him to an order of discharge.”
Respondent confuses the issue in its discussion of waiver, and I think the majority opinion is subject to the same fault. Of course, petitioner waived his right to go to the Supreme Court but that is something different and distinct from a waiver of his right to be discharged under the four-month provision. As already shown, he not only contended but persisted in the contention that he be accorded this statutory and constitutional right.
Conceding that a writ of error or appeal to the Supreme Court would have been the proper remedy at the time the judgment was rendered against petitioner, I think it is of little consequence as it bears on the instant proceeding. Admittedly, the twenty-year period has long since expired and such remedy is no longer available. It is reasonably certain that the Supreme Court, assuming it followed its previous decisions, would have been compelled to have ordered petitioner’s discharge. Neither would the petitioner have needed a bill of exceptions to have raised the question any more than he needs a bill of exceptions in the instant proceeding. As pointed out in People v. Tait, 390 Ill. 272, 273, 61 N.E.2d 166, the proceedings must be preserved by a bill of exceptions or a certificate of the trial judge. As already shown, a solution of the question resides in the common law record and not in a bill of exceptions. All that he would have needed for the Supreme Court was a certificate of the trial judge as to what was shown by such record. Such certificate is unnecessary in the instant proceeding, as the common law record was admitted in evidence without objection.
Respondent and the majority of this court too readily brush aside the recent United States Supreme Court case of Mar-ino v. Ragen, 68 S.Ct. 240. In that case the defendant had entered a plea of guilty and was given a life sentence for murder. There, as here, habeas corpus was resorted to and the sole record before the Supreme Court was the common law record. The point in issue was that the defendant was not represented by counsel, even though this fact was not shown by the record. Presumably, the defendant in that case could have raised the point on writ of error to the Supreme Court of Illinois. However, as here, that was not done, and, as here, the twenty-year period had expired. If a defendant under those circumstances is entitled to relief in a Federal court for a violation of a constitutional right, as shown by the common law record, it is not easy to discern why the defendant in the instant case should not be entitled to relief for the violation of a constitutional right likewise based on the common law record. True, the State confessed error in the Mar-ino case, which suggests that it should have made the same confession in the instant case.
Respondent and the majority opinion also rely upon Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, where the court held that a defendant who had been convicted under the Selective Training and Service Act could not review his conviction by a writ of habeas corpus, after failing to appeal within the fixed time. That case, however, is distinguished by the fact that the sole question involved was the refusal of the trial court to admit certain evidence offered by the defendant. The court held in effect that such refusal was merely an error in ruling on a question of law and did not deprive the defendant of any constitutional right, while in the instant case the failure of the court to perform its mandatory duty *615and discharge the petitioner was a violation of such right.
It is, therefore, my view that the order discharging the petitioner was proper and should be affirmed.