(dissenting).
“[R]ight and justice shall be administered without sale, denial, or delay.” Constitution 1901, § 13.
When a defendant, a convict already in the custody of the prison warden of the State of Alabama, makes known to the highest executive officer of the county that he wishes to be brought to trial and follows that up with notice to the chief public prosecutor to my way of thinking, he has already made his record — ineradicably. Thus, the constitutional requisites enforced in Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, have here been complied with. To say that by pleading guilty to the indictment at a later date Willis has waived the right to a speedy trial puts a premium on public officers ignoring requests for trial.
The means for jail delivery in this State are vague enough as is Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308. To add a further turn to the labyrinthian maze neither comports with any notion of natural justice nor efficient public administration. Furthermore, it is my belief that a persqn, once indicted, unless he affirmatively consents otherwise, must be tried not later than the •second sitting of the circuit court after the indictment has been served upon him. This I deduce from the requirements of common law habeas corpus and decisions based thereon. Duncan v. State, 42 Ala.App. 111, 154 So.2d 302, gives the basis for this belief.
Ordinarily, the State (as the prosecutor) is not to be put in the position of condoning crimes nor can it confess error so as to oust appellate courts of their jurisdiction. Code 1940, T. 15, § 389. However, indictments can be dismissed under T. 15, § 357, by the entering of a nol pros which is strictly a discontinuance and not a retraxit. Walker v. State, 61 Ala. 30. Also, the prosecution, by participating in a proceeding for a motion for a new trial, can put itself in a position of waiving the strict thirty-day requirement of T. 13, § 119.
So it is that I arrive at the conclusion which I hope is not startling either to fairness or reason, that upon the failure of the State to prosecute promptly after demand the law worked an automatic discontinuance of the prosecution. The result was that when Willis was finally brought to trial there was, in law, actually no indictment pending against him. If this be valid, the court was without jurisdiction. The fact that he was forced to plead to a nonexistent indictment breathed no life into the further proceedings.
That Willis is now before us by way of coram nobis, makes no legal difference. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 came about thus.
I must respectfully dissent and trust that the matter will be placed before the Supreme Court of Alabama for decision by reason of the division of this court as fully as if certified by one of the judges under Code 1940, T. 13, § 88.