Appellant was put in the Mobile County jail on December 10, 1964, on a complaint made by his wife on November 26, 1964, for offenses alleged to have been committed by him against two of his daughters on August 7, 1964, at about 6:30 P.M.
On May 12, 1965, the Grand Jury of Mobile County, Alabama, indicted appellant charging that he “did carnally know, or abuse in the attempt to carnally know Linda Sue Autrey, a girl under the age of twelve years, against the peace and dignity of the State of Alabama”.
On May 26, 1965, appellant, accompanied by his court-appointed attorney, appeared before the court and waived arraignment, entering a plea of not guilty and the case was set for trial on June 16, 1965. On December 9, 1966, the court again set the date for trial at January 10, 1967, after which appellant filed a motion to abate and dismiss the indictment because of his denial of a speedy trial in that he had been held in jail for twenty-four months. This motion was denied by the court.
On January 10, 1967, appellant was tried by a jury, found guilty as charged, and sentenced to a term of ten years in the State penitentiary.
Appellant’s wife, Rosie Autrey, declined to testify against her husband.
Appellant’s fourteen year old daughter, Linda Sue Autrey, testified that on August 7, 1964, at approximately 6:30 P.M. (at which time she was twelve years of age) she and her ten year old sister, Gloria, were in bed; that her father came into the bedroom, “took his clothes off and got in bed with us”; that “his body was completely exposed”; that he “pulled my panties off”, “got on top of me and started going up and down”; and that he “placed his private parts in my private parts”. She stated that this had happened twice previously. The witness stated that her father then got on top of her sister and repeated the performance.
Gloria Jean Autrey testified substantially the same as her sister. She stated that *55her father had been drinking on the night in question, that she saw him perform the act with her sister, and that afterwards he repeated the act with her.
Four of the appellant’s sons testified that the appellant was a good father, lived a good life, and had taught them to be good and obedient.
Twelve witnesses testified that appellant’s reputation for truth and veracity in the community was good.
Appellant then took the stand in his own behalf and denied the charges against him. He stated that he had had trouble with his oldest daughter, Lottie; that just prior to the alleged offense, Lottie, accompanied by Gloria, had taken his car without his permission; that he had later had to call the police to pide them up; and that Lottie and Gloria had both been placed in the juvenile detention home. He testified that shortly after they were placed in the detention home, this complaint was filed against him; that he did not know how the August 7 date was chosen by the State’s witnesses as the date of the alleged incident. He further testified that Gloria was slightly retarded.
This court, by Tit. 15, Sec. 389, Code of Ala., 1940, will consider all elements of the case in question, whether or not error has been assigned. Appellant, perfecting his own appeal, has also specifically assigned as error eleven questions for this court to consider. We find no merit in appellant’s claims of error Nos. 2-5 and 8-11.
Appellant contends by his claim of error No. 7 that “the trial court erred when it refused to issue a subpoena for Dr. C. H. Ross, the doctor who allegedly examined the complainant in December, 1964.” The record reveals the following regarding this contention:
“MR. MERIWETHER: * * * According to the Court’s instructions I have endeavored to call Dr. Ross and I have contacted his office; Dr. Ross is reportedly in bed at this time, he is a man of substantial years and he does not come into his office until about four o’clock in the evening. The lady that I contacted states that there’s no record in the office of this case whatsoever, but she says that she feels the doctor would remember the occasion himself. I have asked that the doctor come down if he can — if he’s able to come down; however, I would insist upon the issuance of a subpoena at this time.
“THE COURT: All right. I think the Court’s going to decline to issue an instanter subpoena which would mean that a deputy sheriff would be ordered to pick Dr. Ross up and bring him in immediately, in view of the fact that Dr. Ross — I believe you stated to me a little while ago that Dr. Ross was some seventy-five years old. The State did not mention his name in the direct examination. As I recall, the evidence was that some doctor examined this girl in December for something which is alleged to have happened in August. If Dr. Ross’ secretary has stated to you that he might know something about, but that they have no record; and if she has said that if he’s physically able that he will call the Clerk and make himself available, the Court feels that the evil of having a sheriff pick up that doctor and bring him into Court, not knowing what he will or will not know, outweighs the good; and I decline the motion.
“MR. MERIWETHER: We except, your Honor.”
Compulsory attendance of this witness rested fully within the discretion of the trial judge. It is not shown that this doctor possessed any evidence beneficial to appellant, and in the absence of such showing, we hold that the trial judge did not abuse his discretion in his failure to compel attendance of this doctor.
Appellant further contends that there was insufficient evidence to sustain conviction. *56However, after reading the evidence presented by the State, we are of the conclusion that the evidence presented a fact for the jury to decide as to appellant’s guilt.
Appellant also contends as claim of error No. 1 that it was error for the trial court to not provide him with a special venire and that he had not waived his right to same.
Tit. 30, Sec. 63, Code of Alabama, 1940, requires a special venire for all capital cases. To waive this special venire, appellant must do so in writing.
Tit. 15, Sec. 380, Code of Alabama, 1940, states in part as follows concerning what a transcript must not contain:
“Such transcript must not contain * * * the venire for any grand or petit jury, nor the organization of regular juries for the week or time at which the case was tried, nor the order of the court for a special venire * * *; but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal.”
The record of the trial complies with this code provision and does not show anything concerning a special venire. However, the record also does not disclose any objection or outcry during the course of the trial because of a lack of a special venire.
The case of Davis v. State, 259 Ala. 212, 66 So.2d 714, states in part as follows:
“Under the law as now set up the failure to comply with any of those provisions required to be omitted from the transcript [as by Tit. 15, Sec. 380, supra] amounts to a waiver and is not available on appeal.” (Emphasis ours)
See also Seals v. State, 271 Ala. 142, 122 So. 2d 513.
Since the record relates no objection on the question of a special venire in the trial court, appellant may not now raise it on appeal.
One major question must, however, be considered by this court, and that is the time lapse between the arraignment of appellant, at which his trial was first set, and the second setting of his trial, a lapse of some nineteen months, unexplained by the record.
Looking at this lapse most strongly in favor of appellant, as mentioned by his Motion to Abate and Dismiss Indictment and Prosecution, the question is then raised as to whether or not the constitutional rights to a speedy trial owed appellant have been violated.
The Constitution of Alabama, 1901, Art. 1, Sec. 6, states in part as follows:
“ * * * and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed
On its face, it therefore appears that this total elapsed time of over twenty-four months from arrest to trial had violated appellant’s right. However, the case of Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, states as follows:
“[T]he majority view is that a demand for a trial or objection to the postponement of the trial, or some other effort to secure a speedy trial on the part of the accused, ordinarily must be affirmatively shown to entitle him to a discharge on the ground of delay. Frankel v. Woodrough, supra [8 Cir., 7 F.2d 796]; Phillips v. United States, 8 Cir., 201 F. 259, 262; Worthington v. United States, 7 Cir., 1 F.2d 154.”
The United States Circuit Court of Appeals also stated in Worthington v. United States, 7 Cir., 1 F.2d 154:
“The principal assignment of error is the ruling of the court in refusing to dismiss the defendants upon their plea, and sustaining plaintiff’s demurrer thereto. The record fails to show a single effort made by defendant, or any other defend*57ant, to avail himself of a speedy trial. No facts were pleaded bringing the case within the rule requiring a speedy trial; i. e., that the defendant was incarcerated, or, being enlarged, had appeared in open court demanding trial, or otherwise. Defendant’s sole reliance was upon the bare fact that the case had not been prosecuted. If the defendant desired a speedy trial, it was his duty to ask for it, and we must assume that it would have been granted, had he made any effort to procure it. His long and uninterrupted acquiescence in the delay bars his right to complain. Phillips v. United States, 8 Cir., 201 Fed. 262, 120 C.C.A. 149.”
See also United States v. Research Foundation, Inc., D.C.N.Y., 155 F.Supp. 650; United States v. Monarch Radio & Television Corp., D.C.N.Y., 162 F.Supp. 910; State v. Banks, 111 La. 22, 35 So. 370; State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168; Williams v. State, 210 Ark. 402, 196 S.W.2d 489; Loy v. Grayson, Fla., 99 So.2d 555; State v. Sawyer, 266 Wis. 494, 63 N.W.2d 749, cert. den. Sawyer v. State of Wisconsin, 348 U.S. 855, 75 S.Ct. 80, 99 L.Ed. 674; People v. Duncan, 373 Mich. 650, 130 N.W.2d 385; State v. Holloway, 147 Conn. 22, 156 A.2d 466, and State v. Thompson, 38 Wash.2d 774, 232 P.2d 87.
The case of Hernandez v. State, 40 Ariz. 200, 11 P.2d 356, aptly states as follows:
“The constitutional and statutory provisions involved herein were not meant to shield the guilty man who sits silently by and allows the officers of the state to assume that he acquiesces in delaying a trial, and then, when it is too late for the mistake to be remedied, claims his rights. They were meant rather to protect the man who seasonably makes it known to the proper officers that he claims an early trial, so that his innocence may be established.”
The rights of appellant were in no way curtailed by the fact that he was in jail during these months of delay. For though he was incarcerated, he still had the ability and the means of bringing to the attention of the court his demand for a speedy trial.
In Goss v. State, Alaska, 390 P.2d 220, cert. den. 379 U.S. 359, 85 S.Ct. 118, 13 L.Ed.2d 62, the court states in part the following:
“The foregoing facts in no way suggest that appellant because of imprisonment, ignorance, or lack of legal assistance was not in a position to claim his constitutional right to a speedy trial. We conclude that he waived the right by failing to assert it promptly.”
See also Chelf v. State, 223 Ind. 70, 58 N.E.2d 353.
This right to a speedy trial is a constitutional “right”, but in order to obtain the benefit of it, it must be affirmatively exercised. This right is like unto a switch which must be “thrown” by that person who wishes to avail himself thereof before a claim of injury may be raised.
The complaint against appellant was made on November 26, 1964; he was arrested on December 10, 1964, and obviously indicted in the normal course on May 12, 1965. Counsel was appointed by the court for appellant on May 18, 1965, and appellant appeared in court with his counsel on May 26, 1965, to waive arraignment, plead not guilty, and hear his trial set for June 16, 1965. Since no bail was available to appellant, he was in jail for the ensuing nineteen months, until December 9, 1966, at which time his trial was set for January 10, 1967. During this entire period of time, according to the record, appellant, in person or through his attorney, made no outcry and made no attempt to obtain a speedy trial. From an observation of the record, this court does not know but what appellant was glad to be ignored by the prosecution. Duncan v. State, 42 Ala.App. 111, 154 So.2d 302, affd. 42 Ala.App. 509, 169 So.2d 439.
*58Because of appellant’s apparent failure to attempt in any way to procure a speedy trial, he cannot at this time claim that he was denied such, his acquiescence being construed as a waiver of such right.
The judgment in this cause is, therefore, due to be and the same is hereby
Affirmed.
CATES, J., dissents.