(dissenting).
I. I agree with the holding defendant-appellant’s first assigned error involving the speedy indictment issue is untenable.
II. I disagree with the holding regarding the second assigned error on the speedy trial issue as stated in division II of the majority opinion. I dissent therefrom on the several grounds stated infra.
On June 27, 1973 a county attorney’s information was filed charging defendant with delivery of a controlled substance. His previously posted bail bond was continued in force. On August 20, 1973 Judge Crouch entered an order discharging the jury panel from further service for the July term because an insufficient number of jurors were present for trial of more cases. As pointed out in the majority opinion jurors in Polk District Court may obtain a release from the panel after serving in two or more trials. Apparently the number of trials pri- or to August 20 had resulted in reducing the jury panel members to an insufficient number for further trials during the last few days of August.
On August 21, 1973 (55 days after the information was filed), the State filed a motion for continuance of the trial date which was set for the next day, August 22. A week later, August 29, defendant filed resistance to the motion on the ground defendant had not been timely charged pursuant to the provisions of Code section 795.-1. On the same date, being Wednesday August 29, Judge Missildine sustained the State’s motion for continuance and set Monday, September 10,1973 as trial date. Judicial notice may be taken that September 3 was Labor Day. Therefore the continuance covered only six possible trial days.
Defendant did not in the lower court and he does not on this appeal contend the trial court abused its discretion in granting the short continuance. He has made no attack on that order.
*162The granting or refusal of a motion for a continuance rests largely in the sound discretion of the trial court. We will not interfere unless there is a clear abuse of discretion. Evans v. Rosenberger, Iowa, 181 N.W.2d 152, 157. In State v. McNeal, 261 Iowa 1387, 1392, 1393, 158 N.W.2d 129, 133, we say:
“The granting or refusing a motion for continuance rests largely in the sound discretion of the trial court. State v. Myers, 248 Iowa 44, 79 N.W.2d 382; State v. Meeks, 245 Iowa 1231, 65 N.W.2d 76; State v. Mauch, 236 Iowa 217, 17 N.W.2d 536. Such discretion as to continuance on the part of the trial court is very broad. State v. Sieren, 253 Iowa 118, 111 N.W.2d 249.”
Defendant’s second assigned error should be held to be without merit in view of the valid continuance order. Defendant filed no demand for an earlier trial.
III. On Friday, September 7, 1973 defendant filed a motion to dismiss based on the requirement for indictment (which includes county attorney’s information) within 30 days after being held to answer. That motion came before the court Monday morning, September 10, the time set for trial. The transcript of the proceedings includes:
“THE COURT: You may proceed on your motion, Mr. Christensen.
“MR. CHRISTENSEN: May it please the Court: Comes now the defendant, Robert Lewis Hines, through his attorney, Mike Christensen, and in support of his motion to dismiss states:
“That the State of Iowa has waived their right to a preliminary hearing in this matter, in violation of 795.1 of the 1973 Code of Iowa, the defendant was not awarded a speedy trial; that the State by failing to bring the defendant to trial after the defendant was held to answer has in fact violated his constitutional rights as well as his rights of protection under the Iowa Constitution.
“I offer the motion to dismiss and the brief in support of my motion to dismiss as my sole and final argument in this matter and I think they set it out much better than I can summarize it at this time.
“THE COURT: It looks to me from reading your motion that you are talking about speedy indictment or speedy information under the Morningstar case rather than speedy trial, is that true?
“MR. CHRISTENSEN: That’s correct, Your Honor. I am also stating in my motion that the State as well as the defense can waive their right to a speedy trial and I think if you read the Iowa Code sections applicable in this matter the State has waived their right to a speedy trial in not indicting Mr. Hines within thirty days after he was brought before the magistrate in Municipal Court.
“THE COURT: You are talking about the thirty day period of statute of filing an information or a grand jury indictment rather than bringing him to trial within sixty days, isn’t this true?
“MR. CHRISTENSEN: This is correct, Your Honor. In proposition one of my brief that is what I am talking about.
“THE COURT: Isn’t this true of your whole motion? I don’t see anything about speedy trial. I see something about speedy indictment or speedy information, which is a thirty day rule. I don’t see anything about a speedy trial here.
“MR. CHRISTENSEN: Speedy trial, Your Honor, I think is set forth in my second proposition whereby—
“THE COURT: Look at your second proposition. I don’t see that in there.
“MR. CHRISTENSEN: It is in my brief.
“THE COURT: It is not in your motion. That’s the trouble.
“MR. CHRISTENSEN: Okey, let me amend my motion to dismiss.
“Proposition 2: The defendant hereby asks the Court to dismiss the charges *163leveled against Mr. Robert Hines for the reason that he’s not been afforded a speedy trial as required under the U. S. Constitution and State vs. Gorham.
“THE COURT: Very well. Does that complete your motion?
“MR. CHRISTENSEN: Yes, Your Hon- or.”
Thus it is clear defendant did not raise the speedy trial issue under the provisions of Code section 795.2 until immediately before his assigned trial commenced. It came too late. A defendant who delays until the day of trial to move for dismissal for want of speedy trial waives his right to dismissal. State v. Peterson, Iowa, 189 N.W.2d 891, 893; State v. Allnutt, 261 Iowa 910, 913, 914, 156 N.W.2d 274, 275, 276 and citations. The trial court did not err in overruling defendant’s last minute motion to dismiss the charge against defendant for want of speedy trial.
IV. Code section 795.2 as pertinent here provides:
“If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found, the court must order it be dismissed, unless good cause to the contrary be shown. * *
The majority reverses on the “good cause” issue. Although I am convinced discussion thereof is unnecessary, it must be noted that certainly under the record there was “good cause” under the statute.
The determination of whether good cause is established rests largely in the discretion of the trial court. Each case must stand on its own facts. To be entitled to a reversal defendant must show the trial court abused its discretion. State v. Nelson, Iowa, 222 N.W.2d 445, 448; Maher v. Brown, 225 Iowa 341, 343, 344, 280 N.W. 553, 554; Davison v. Garfield, 219 Iowa 1258, 1262, 257 N.W. 432, 434.
In State v. Jennings, Iowa, 195 N.W.2d 351, 356, we say:
“Delay resulting from congestion of a trial docket attributable to exceptional circumstances, and unavailability of prosecutor or trial judge, may constitute good cause for a reasonable trial delay. See ABA Standards, Speedy Trial, Approved Draft, § 2.3(b) (and comment).”
In Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 26 L.Ed.2d 26, 32, the court states: “Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable.”
In Jennings we held good cause was sufficiently shown and refused to set aside defendant’s conspiracy conviction at a trial held after expiration of the 60-day statutory period.
We have not heretofore considered an unexpected depletion of the number of available jury panel members apparently resulting from congestion of the trial docket. However, our holding in Jennings would seem to mandate the conclusion good cause was sufficiently shown.
The Supreme Court of Washington has on several occasions upheld finding good cause existed for delay resulting from absence of available jurors or jury panel to try a case within its 60-day limitation statute. See State v. Garman, 76 Wash.2d 637, 458 P.2d 292; State v. Jestes, 75 Wash.2d 47, 448 P.2d 917; State v. Jesse, 65 Wash.2d 510, 397 P.2d 1018.
Another factor which must be considered in our determination of whether the trial court abused its discretion is the fact defendant at no time demanded a speedy trial. A failure to demand speedy trial does not alone toll the running of the time period set in section 795.2. However, it is a factor to be considered with other facts relating to whether there was good cause for delay. State v. Nelson, supra, Iowa, 222 N.W.2d 445, 446, 447; State v. Gorham, Iowa, 206 N.W.2d 908, 912.
A summary of the facts and circumstances on which Judge Missildine exercised his discretion in overruling defendant’s mo*164tion to dismiss perhaps may be helpful. A crowded jury trial schedule had depleted the jury panel shortly before the end of the July-August trial session. To have ordered drawing the names of more jurors, getting out summons for their appearance and preparation of an additional jury panel list immediately before or after Labor Day holiday would have resulted in needless expenditure of employee’s time and county funds. Summoning witnesses on short notice is difficult. September jury panel was to be available for defendant’s trial on September 10. Defendant was not incarcerated. He had made no demand for speedy trial. There was no indication defendant’s defense would be prejudiced by a short delay. Defendant first raised the speedy trial issue immediately before his trial commenced.
I find no basis for holding the trial judge abused his discretion in finding good cause and denying the motion to dismiss.
I would affirm.
REES and UHLENHOPP, JJ., join this dissent.