Dissenting Opinion
Gilkison, C. J.I am in dissent with the majority opinion, for reasons as follows:
*69As affecting the issue presented in this appeal, Art. 1, Sec. 1 of our state constitution provides:
“We Declare, That all men . . . are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; . . ,”1
Partially implementing this provision of our state constitution the legislature, long ago enacted a statute as follows:
“A defendant is presumed to be innocent until the contrary is proved. . . .” Sec. 9-1806 Burns’ 1942 Repl., Sec. 1824, R. S. 1881.
Implementing this revered provision of our statutes, this court has repeatedly held thus :
“In criminal cases, the entire burden is upon the State from the beginning, and the accused is not bound to explain anything, and his failure to do so cannot be considered as a circumstance tending to prove his guilt. Doan v. State, 26 Ind. 495; Clem v. State, 42 Ind. 420.” Parker et al. v. The State (1894), 136 Ind. 284, 292, 35 N. E. 1105; Dorak v. State (1915), 183 Ind. 622, 109 N. E. 771; Bowen v. State (1920), 189 Ind. 644, 655, 128 N. E. 926; Aszman v. State (1889), 123 Ind. 347, 360, et seq.
Many additional cases could be cited supporting this proposition. But the rule stated is of such universal application it should be accepted as true without authority.
The intrinsic record in the case conclusively shows that appellant was committed to the Hancock County jail on the indictment upon which he was tried, on June *7020, 1951, being during April, 1951, term of the court. On September 8, 1951, being the 5th day of the September term of court, the defendant entered a plea of not guilty, to the charges in the indictment. At that time the court set his trial for November 26, 1951. On November 8, 1951, being the 57th Judicial day of the September 1951 term of the court, the court of its own motion took the case from the trial calendar, “to be reset for trial at a later date.” On December 1st, 1951, being the 11th Judicial day of the November, 1951, term of the Hancock Circuit Court, the court of its own motion set defendant’s trial for February 11, 1952. On January 31, 1952 the defendant filed and presented his motion for separate trial, and on February 4, 1952, being the 1st Judicial day of the February, 1952, term, the motion was sustained.
Terms of the Circuit Court in Hancock County begin as follows: “1st Tuesday of September, 3rd Monday in November, 1st Monday in February, 4th Monday in April of each year. Each term to continue so long as business requires.” Sec. 4-332 Burns’ 1946 Repl. Pocket Supp. Page 45. (Acts 1951, §1, Chap. 123, p. 324.)
Further implementing Art. 1, Secs. 1 and 13 of our state constitution the legislature long ago enacted the statute upon which the motion to dismiss this action is based, so far as applicable to this appeal it is as follows:
“And no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a con-tinous period embracing more than two (2) terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or affidavit filed, more than two (2) terms after the term at which the indictment was found or the affidavit was filed; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try *71him during such termsSec. 9-1402, Burns’ 1942 Repl.
This has been the law in Indiana since 1881. (Sec. 207, p. 153, Acts 1881.)
There is no contention that appellant comes within any of the exceptions in the law. From the date of his arrest June 20, 1951, as heretofore noted, he was held in the Hancock County jail without bond, and was so held when he was tried beginning February 11, 1952. It is not disputed that he was so held in the Hancock County jail without bond and without trial continuously from the date of his arrest through the September and November Terms 1951 of the Hancock Circuit Court and until after his trial during the February 1952 term thereof, or for a continuous period exceeding two full terms of court after the term at which the indictment was found against him. This is conclusively shown by the intrinsic record of the court, and requires no further proof. Zehrlaut v. State (1951), 230 Ind. 175, 182, 102 N. E. 2d 203.
There is no contention that the verified motion to dismiss did not contain every proposition affirmative and negative required by the statutes. It was filed, presented and denied before final judgment was rendered and while the cause was still pending in the trial court.
The statute involved contains no statement or inference as to when or how a defendant must or may claim his right to a discharge because of the state’s delay in bringing him to trial, except that it must be after he is detained in jail awaiting trial for more than two full terms of the court after the term at which the indictment was returned and his arrest and incarceration thereon. It was the duty of the legislature to fix this time and it has done so. It is a duty of the *72court on appeal of such a case, to be bound by the statute as to such time. We cannot legislate, as the majority opinion attempts to do, and say that the defendant must file his motion for discharge before the beginning of his trial. The involved statute is also an implementation of Sec. 12, Article 1 of the Constitution that “Justice shall be administered . . . speedily and without delay.” Zehrlaut v. State (1951), 230 Ind. 175, 180, 102 N. E. 2d 203 and authorities there cited, p. 181, supra. We have frequently held that:
“The provisions of the statute must be strictly construed in favor of the liberty of citizens placed under arrest.” Zehrlaut v. State, supra, and authorities there cited at page 180.
See also statement of Bobbitt, J., in Colglazier v. State (1953), 231 Ind. 571 at page 575 thus:
“This statute will be strictly construed and all doubts resolved in favor of the accused. Zehrlaut v. State (1951), 230 Ind. 175, 102 N. E. 2d 203; State v. Kuhn (1900), 154 Ind. 450, 453, 57 N. E. 106; Ewbank’s Indiana Criminal Law, 2d ed., §437, p. 288.”
This rule is perfectly agreeable with the ancient statute heretofore cited that, “A defendant is presumed to be innocent until the contrary is proved.” Sec. 9-1807 Burns’ 1942 Repl. Indeed there are no exceptions to this rule (unless the majority opinion is an exception). I think it, by judicial legislation, attempts to add a time limitation for filing the motion for discharge—not contained within the statute. This is an amendment and change of the statute no court has jurisdiction to make.
I do not think defendant can be charged with notice that on appeal this court will unlawfully attempt to legislate or otherwise fix a time limit for the filing of his motion, different from that fixed in the statute.
The opinion labors to justify its indulgence in a *73presumption that by mere silence the defendant waived his unquestioned right to discharge for the state’s delay in bringing him to trial. This makes it necessary to discuss the legal principle of “waiver.” We have heretofore held, with respect to the companion statute, Sec. 9-1403, Burns’ 1942 Repl. as follows:
“[It] is a limitation upon the right of the state to hold a person by recognizance to answer a criminal charge. Being a practical implementation of Art. 1, §12 of the Indiana Constitution, it casts no burden upon the defendant, but does cast an imperative duty upon the state and its officers, the trial courts and prosecuting attorneys, to see that a defendant held on recognizance is brought to trial agreeable with this section of the constitution and its implementing statute. It is not a fault of the defendant if he remain silent while under recognizance, on the contrary, that is his right. He is not required to make any demand of the state or the court for a speedy trial. That demand is effectively made for him by the constitution and its implementing statute, and this demand thus made the state may not ignore without incurring the penalty provided by the statute.” Zehrlaut v. State (1951), 230 Ind. 175, 183, 102 N. E. 2d 369, supra.
We have also definitely held as before noted, thus:
“This statute will be strictly construed and all doubts resolved in favor of the accused.” Colglazier v. State (1953), 231 Ind. 571, at page 575, supra.
There can be no doubt that that part of the companion statute, See. 9-1402, Burns’ 1942 Repl. relied upon by appellant and heretofore quoted, should be interpreted by the same rule, and so doing we must say that this section is a limitation upon the right of the state to detain a defendant in jail, without a trial (if he was in jail when the indictment was returned), for more than two successive terms of the court after the term at which the indictment was found.
Where fundamental constitutional rights are involved, *74waiver cannot be assumed under any circumstances, especially when human liberty is at issue. In such instances where a waiver of such rights is claimed by the state the burden of proving it is upon the state. The state must make this proof unaided by any presumption in its favor against the defendant. Johnson v. Zerhst (1928), 304 U. S. 458, 464, head-notes 1, 2 and 3, 82 L. Ed. 1461, 1466, and authorities there cited. Batchelor v. State (1920), 189 Ind. 69, 77 et seq., 125 N. E. 773, 776 and authorities there cited. The intrinsic record of the trial court, of which it must take judicial notice without proof, negates the possibility of such proof in this case.
The burden is never on a defendant to show he did not waive fundamental rights. It is enough for him to show that he was denied a right to which he was entitled under the constitution and implementing statutes. “Our law is no respecter of persons. The rights of just and upright citizens are not more sacred in the eyes of the law than the rights of the poorest and meanest citizen of the state. The safeguards erected by the Constitution are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent. The court cannot give its sanction to the conviction of any person accused of crime where the proceedings on which the judgment is based show the denial of a right to which the defendant was entitled under the Constitution. Such judicial sanction, in any case, would destroy the efficacy of the constitutional safeguards to protect the rights of all citizens of the state.” Batchelor v. State (1920), 189 Ind. 69, 84, 85, quoted with approval by Emmert, J., in his excellent dissent in Schmittler v. State (1950), 228 Ind. 450, at page 473. In this dissent Judge Emmert also quoted with approval from Chief Justice Stone in Ex *75parte Quirin (1942), 317 U. S. 1, 25, 63 S. Ct. 2, 9, 87 L. Ed. 3, 11, thus:
“Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. Ex Parte Milligan (1866), 4 Wall. 107, 18 L. Ed. 295, 299; Turney v. Ohio, 273 U. S. 510, 535, 71 L. Ed. 749, 759, 50 A. L. R. 1243; Hill V. Texas (1942), 316 U. S. 400, 406, 86 L. Ed. 1559, 1563.”
I think this was good law when it was written, that it is good law today and that it will continue to be as long as we remain a free people. I am at a loss to find a reason for abandoning it in this case. I think the U. S. Supreme Court was right when it said:
“. . . for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamors of an excited people ...” Mr. Justice Davis in the Majority opinion Ex Parte Milligan, Supra, at page 119, 4 Wall, page 295, 18 L. Ed.
Even in civil cases it has always been held that:
“While a condition may be waived by a party who has the right to avail himself of it, mere indulgence or silent acquiescence in the failure to perform is never construed into a waiver, unless some element of estoppel can be invoked.” Royal v. The Aultman and Taylor Co. et al. (1888), 116 Ind. 424, 427, 19 N. E. 202, 2 L. R. A. 526; Carbon Block Coal Co. v. Murphy, et al. (1885), 101 Ind. 115, 117; Lindsey v. Lindsey (1874), 45 Ind. 552, *76567; Van Horn v. Mercer (1902), 29 Ind. App. 277, 280, 64 N. E. 531.
The rule with respect to a waiver by a defendant in a criminal case is necessarily much stronger and stricter in favor of the party defendant, than it is in favor of a party against whom it is asserted in a civil action. Apparently both the trial court and the majority of this court actually seek to estop the defendant from presenting his petition for discharge. The effect of the judgment is to accomplish that end. But the principle of estoppel cannot be invoked against a defendant in a criminal case. Neither the state nor anyone can have acquired equities of any kind or character, that would permit the rule of estoppel to be invoked against this defendant.
This court owes no duty to relieve the state from the statutory penalty it has incurred by reason of its failure to bring the defendant to a speedy trial agreeable with the involved statute. I cannot agree with the acrobatic reasoning of the majority opinion arbitrarily holding to the contrary. Unfortunately the majority opinion makes two lines of decisions in Indiana diamet-trically opposed, on exactly similar facts. We may now go either way on these and similar cases, on authority.
I would reverse the judgment with instructions to sustain the motion to dismiss the action.
Note.—Reported in 122 N. E. 2d 860.
. Art. 1, Sec. 1, 1816 Constitution of Indiana, among other things, provided:
“We Declare, That all men . . . have certain natural, inherent, and unalienable rights: among which are, the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property and pursuing and obtaining happiness and safety.” R. S. 1843, p. 41.