This is an appeal from an order of the District Court of December 2, 1946,' dismissing an indictment against all of appel-lees. The indictment had been returned January 3, 1944, charging defendants with subversive activities in violation of the Act of June 28, 1940.1 The case went to trial before Judge Eicher and a jury on April 17, 1944, and ended in a mistrial some eight months later as a result of Judge Eicher’s sudden death. Thereafter on several occasions various of the defendants moved for trial, but without result.
In the early part of 1946 Judge Laws was assigned to the case and a number of hearings on the pending motions to dismiss were had by him. The Government was not ready to go forward and on at least three occasions time was extended in order that, if possible, new evidence might be obtained.
In November, 1946, counsel' for the Government and for defendants met with Judge Laws to determine what should be done with the case, and after a full hearing Judge Laws concluded that it was his plain duty to dismiss the indictments for lack of prosecution, and in taking this action he said:
“Usually the Court will permit the prosecutor to decide whether he will bring a case to trial. But where it appears, as here, there is serious doubt as to the success of the case, and that the defendants, because of long delays granted over their objection,s, cannot obtain a fair trial, the Court should exercise its discretion to deny prosecution. It would be both unjust and un-American to do otherwise.
“The defendants have been before the Court upon these charges for nearly four and one-half years. All of them were brought here from other parts of the country to stand trial. Because of the impoverished state of eighteen of the defendants, they were represented by counsel not of their own choice, but assigned by the Court to serve without compensation. As in all long-delayed cases, the witnesses now are scattered; some are not accessible, more particularly to the defendants who are without funds; the memories of witnesses as to events occurring many years ago are not clear. It is for these reasons among others that the Constitution of the United States requires a speedy trial and that the Congress of the United States has imposed Statute of Limitations to prevent long-delayed prosecutions. I do not see how these defendants now can possibly obtain fair trials.
“Under the circumstances, to permit another trial, which conceivably would last more than a year, with new prosecutors and newly appointed counsel for defendants, with the eventual outcome in serious doubt, as Mr. Rogge [Government counsel] has stated to the Court on three occasions, would be a travesty on justice. I have no doubt the cases should be dismissed and an order to that effect will be entered as to all defendants.”
The question for decision on the appeal is (a), whether an action on a motion to dismiss for lack of prosecution is within the sound judicial discretion of the trial judge and (b), if so, under what circumstances may its exercise be controlled on appeal ? The answer to the first query is obvious, not only from the provisions of the New Criminal Rules, 18 U.S.C.A. following section 687, but also by the general recognition of the right prior to their enactment. Thus, Rule 48(b) provides inter alia, “ * * * or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information on complaint.” See also Ex parte Altman, D.C.S.D.Cal., 1940, 34 F.Supp. 106, 108. And the answer to the latter query is equally obvious, since the rule of this jurisdiction is that where there has been a lack of due' diligence in the prosecution of a case the trial judge may dismiss and his *697order will be sustained on appeal, unless there has been a clear abuse of discretion. Neel v. Barbra, 1943, 78 U.S.App.D.C. 13, 136 F.2d 269. And by abuse of discretion is meant action which is arbitrary, fanciful, or clearly unreasonable. This is also the rule applied by the Supreme Court,—Continental Ill. Nat. Bank & Trust Co. v. Chicago, Rock I. & Pac. R., 1935, 294 U.S. 648, 677, 55 S.Ct. 595, 79 L.Ed. 1110; Burns v. United States, 1932, 287 U.S. 216, 222, 53 S.Ct. 154, 77 L.Ed. 266, and generally followed in other circuits. See Partridge v. St. Louis Bank, 8 Cir., 1942, 130 F.2d 281; Sweeney v. Anderson, 10 Cir., 1942, 129 F.2d 756; Hicks v. Bekins Co., 9 Cir., 1940, 115 F.2d 406, 408; Krause v. Miss. Coal Corp., 7 Cir., 1937, 93 F.2d 515, 517; United Motors S. Inc. v. Tropic-Aire, Inc., 8 Cir., 1932, 57 F.2d 479.
In this case the record shows that from January, 1946, to the dismissal order entered near the end of that year the trial -court, at the instance of some of the defendants, again and again sought to compel action which would either result in a trial -or dismissal. Its final decision to adopt the latter course seems to us altogether reasonable and proper, and in fact we are not prepared to say it was not compelled in the light of the facts then shown to exist.
Affirmed.
54 Stat. 670, 671,18 U.S.C.A. §§ 0, 11.