This is a petition for writ of procedendo ad judicium1; and necessitates consideration of a situation wherein the accused demands a trial in Arkansas even though he is presently incarcerated in another State.
Petitioner Prank E. Pellegrini filed in this Court his petition for a writ of procedendo ad judicium against Honorable Paul Wolfe, Judge of the Sebastian Circuit Court in the 12th Judicial Circuit of Arkansas. The duly verified petition alleged: (a) that petitioner was, and had been since November 13, 1953, confined in the Texas Prison System at Huntsville, Texas (serving a 15-year sentence for robbery by assault); (b) that on January 13, 1954 the Prosecuting Attorney of the 12th Judicial Circuit of Arkansas (Honorable Paul Gutenson of Sebastian County) sent a warrant/detainer to the Texas Prison System stating that Pellegrini was accused of robbery committed in Sebastian County, Arkansas on January 11, 1953 and should be delivered to Arkansas authorities2; (c) that Pellegrini is anxious for, and entitled to have, a speedy trial in Arkansas on the charge pending against him in Sebastian County; (d) that Pellegrini asked the United States District Court for the Western District of Arkansas to have him extradited to Arkansas for trial in the Sebastian Circuit Court but such relief was refused on the ground that the Arkansas Courts had jurisdiction; (e) that Pellegrini has asked the Sebastian Circuit Court to have him brought to trial in Arkansas for the said offense alleged to have been committed in this State, but the Sebastian Circuit Court has refused his request; (f) that the effect of the warrant/detainer filed by the Arkansas Prosecuting Attorney with the Texas Prison System is to prevent Pellegrini from receiving trusty privileges or parole privileges; and (g) that petitioner is entitled to either a speedy trial on the Arkansas charge,3 or is entitled to have the warrant/detainer recalled and the Arkansas charge dismissed. The prayer of Pellegrini’s petition was for dismissal of the information, or, in the alternative, that this Court require the Judge of the Sebastian Circuit Court to have proper steps taken to bring Pellegrini to trial on the information which the Prosecuting Attorney had filed against Pellegrini in Sebastian County.
Pellegrini filed his own pleading in this Court, and along with the pleading there was a petition and affidavit praying that he be allowed to proceed in forma pauperis. We allowed the petititon to be filed and appointed Honorable Heartsill Ragon of the Port Smith Bar, to represent Pellegrini in this proceeding. Mr. Ragon entered into the discharge of his duties and has filed a brief and a reply brief in this Court, and is hereby commended for the conscientious discharge of his duties. Pellegrini makes the contentions now to be discussed.
I. Petitioner’s Claim for Discharge. Section 43-1708, Ark. Stats., comes to us from § 169 of Chapter 45 of the Revised Statutes and has been many times before this Court. The section reads:
“If any person indicted for any offense, and committed to prison, shall not he brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”4
Pellegrini says that if the information was in fact filed against him in Sebastian County in 1953 (as he has been advised by the Prosecuting Attorney) then more than two terms of Court have passed since such filing and Pellegrini claims he is' entitled to discharge under the above quoted Statute, citing, inter alia: Stewart v. State, 13 Ark. 720; Ware v. State, 159 Ark. 540, 252 S. W. 934; Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777; Bishop v. State, 209 Ark. 1013, 193 S. W. 2d 489; Ponzi v. Fessenden, 258 U. S. 254, 66 L. Ed. 607, 42 S. Ct. 309, 22 A. L. R. 879.
But the defect in Pellegrini’s contention for discharge rests in the fact that he has never pursued the correct procedure to bring himself within that Statute. From the Texas prison he is now trying to say to Arkansas: “I am ready for trial”; yet the fact remains that ever since 1953 he has been beyond the jurisdiction of this State and incarcerated by a Sister State. Even now he is asking Arkansas to use its Sovereign Request to extradite him from Texas in order to stand trial here. In Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777, we held that a prisoner in the Arkansas prison could invoke the two-term-discharge Statute; but in Lee v. State, 185 Ark. 253, 47 S. W. 2d 11, we held that a prisoner in a Federal prison could not avail himself of the two-term-discharge Statute until he had first requested trial in Arkansas and until it was shown that Arkansas could have secured his extradition if request had been made. We used this language:
“Appellant made no effort to demand trial while he was imprisoned in the United States Penitentiary, which lie could have done; and the fact that the State could have procured his presence in her court for trial on the indictments and did not do so deprived him of no right he was entitled to; and the court did not err in denying his motion for a discharge from the indictments pending in her court. ’ ’
The case at bar is governed by the Lee case: Pellegrini is not now entitled to claim relief under the two-term-discharge Statute because he is only now bringing himself within the purview of the Statute.
II. Duty on Arkansas to Seek Extradition.5 In the alternative Pellegrini claims that Arkansas should now seek to extradite him from Texas for trial in this State ; and with this contention we are in agreement. As pointed out in Lee v. State, supra, Pellegrini has a right to ask Arkansas to bring him here for trial; and since such demand has now been made, the Arkansas Court (in this instance the Sebastian Circuit Court) should require the Prosecuting Attorney (if he desires to try Pellegrini) to seek extradition at the Executive level and to pursue the matter with due diligence.6
Arkansas should request Texas to let Arkansas have Pellegrini for trial. If Texas refuses, then Arkansas has done all that is possible* and the two-year-discharge Statute will not inure to the benefit of Pellegrini. If Texas requires, as a condition for granting such extradition, that Pellegrini execute some kind of waiver, then, unless Pellegrini will accomplish such waiver, he has not brought himself within the purview of the Statutory provision relating to two-term-discharge. If Texas does agree to the extradition on conditions met, then Arkansas must extradite and try Pellegrini with dne diligence or Pellegrini will be entitled to have the charges dismissed and .the warrant/detainer cancelled.
The writ of procedendo ad judicium is granted, as herein stated.
Mr. Justice Robinson dissents.See Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, wherein we had occasion to consider a writ of procedendo ad judicium and our authority to issue such a writ under our power of supervision.
The files reflect that the Texas prison officials then replied that Pellegrini could not be delivered to the Arkansas authorities until conclusion of his sentence, unless the Chief Executive of Texas should order otherwise.
See Art. II, § 10 of the Arkansas Constitution.
This section is sometimes referred to as the “two-term-discharge” Statute; and will be so referred to in this opinion.
Arkansas adopted the then Uniform Criminal Extradition Act in 1935 (Act 126 of 1935, see § 43-3001 Ark. Stats.). Texas adopted a later version of the Uniform Criminal Extradition Act by its Chapter 438 of 1951. See Vernon’s Anno. Code of Criminal Procedure, Art. 1008(a). For an Arkansas case considering our Criminal Extradition Act see Gulley v. Apple, 213 Ark. 350, 210 S. W. 2d 514. For a case somewhat like the one at bar see People v. Peters, 101 N. Y. Supp. 2d 755, in which certiorari was denied by U. S. Sup. Ct., 347 U. S. 906, 98 L. Ed. 1064.
Some of the Judges are in doubt as to whether the information filed by the Prosecuting Attorney in the Municipal Court of Fort Smith was ever pursued by being' docketed in the Circuit Court. We leave it to the Circuit Court to exercise its power over the Prosecuting Attorney and the Municipal Court in keeping with this opinion.