On January 25, 1956, three informations against the petitioner were filed, one charging murder in the first degree and the other two charging separate offenses of rape. The murder case was tried in June, 1956. The jury found the defendant guilty and imposed the death sentence. Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. Since then the petitioner has been confined to the death cell in the state penitentiary, his execution having been stayed by a series of legal proceedings by which he has sought to escape the punishment fixed by the jury. Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521; Leggett v. Henslee, 230 Ark. 183, 321 S. W. 2d 764; Leggett v. State, 231 Ark. 13, 328 S. W. 2d 252.
In the two rape cases there was no activity by either side until July 14, 1959. On that date Leggett moved for a dismissal of the charges on the ground that more than two terms of court had elapsed without the cases having been brought to trial. Ark. Stats. 1947, § 43-1708. We upheld the trial court’s refusal to dismiss the informations, the statute being inapplicable to charges pending against a prisoner awaiting execution. Leggett v. State, 231 Ark. 7, 328 S. W. 2d 250.
Following our decision in the case just mentioned the petitioner filed in the circuit court a request that the rape cases be brought to trial. In this pleading Leggett asserts ‘ ‘ that he is entitled to an immediate trial in these cases, and to have a jury pass upon his guilt or innocence and the question of whether or not he is insane.” The circuit judge denied the request for trial, and Leggett then filed the present petition in this court for a writ of mandamus to compel the circuit court to bring the cases to trial. For our jurisdiction in the matter see Rodgers v. Howard, 215 Ark. 43, 219 S. W. 2d 240.
In demanding that the rape cases be heard the petitioner relies upon the federal and state constitutional guaranties of a speedy trial in criminal cases. U. S. Const., Amendment 6; Ark. Const., Art. 2, § 10. It may be doubted whether this provision in the federal bill of rights applies to proceedings in a state court, Gaines v. Washington, 277 U. S. 81, but since the two constitutions contain identical guaranties we find it unnecessary to distinguish between the two.
The petitioner is clearly in error in contending that the constitutional command is inflexibly mandatory, leaving the courts with no discretion in determining what satisfies the requirement of a speedy trial. It is settled hy decisions too numerous to cite that such a provision in a bill of rights does not apply rigidly to every instance of delay in a criminal case. What the constitution prohibits, as we observed in Stewart v. State, 13 Ark. 720, is “vexatious, capricious, and oppressive delays, manufactured by the ministers of justice.”
The point was well pnt in Beavers v. Haubert, 198 U. S. 77, where the court said: “The right of a speedy-trial is necessarily relative. It is consistent with delays and depends upon circumstances. It. secures rights to a defendant. It does not preclude the rights of public justice.” The same thought was expressed in State ex rel, Orcutt v. Simpson, 125 Wash. 665, 216 P. 874: “While it is the duty of the courts to give full force and effect to the spirit of this constitutional guaranty, it seems plain that what is a speedy trial must be determined in the light of the circumstances of each particular case as a matter of judicial discretion.” See also People v. Romero, 13 Calif. App. 2d 667, 57 P. 2d 557; People v. Maniatis, 297 Ill. 72, 130 N. E. 323.
. The mere fact that Leggett is confined to the penitentiary does not, of course, deprive him of the protection afforded by the constitution. Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777. Nevertheless we are firmly of the opinion that the bill of rights does not guarantee to a condemned prisoner the right to be tried upon pending charges while he is an occupant of the death cell, awaiting electrocution. It is not to be presumed, as the court observed in Mitchell v. Lowden, 288 Ill. 327, 123 N. E. 566, that the constitution was intended to produce a result “inconsistent with the judgment of men of common sense guided by reason.” Yet that would demonstrably be the consequence of granting the writ 'sought in the case at bar.
The judgment finding Leggett guilty of murder and sentencing him to death is conclusive of all questions within the issues in that proceeding. West Twelfth St. Rd. Imp. Dist. No. 30 v. Kinstley, 189 Ark. 126, 70 S. W. 2d 555. That judgment, therefore, conclusively settles every question pertaining to Leggett’s guilt and conclusively determines that justice requires the imposition of the death penalty. The execution of the sentence has been delayed, but it goes almost without saying that we, as members of the judiciary, must act upon the assumption that the solemn judgment of the court will in due course be put into effect. The judicial department of the government obviously cannot entertain any doubt whatever as to the ultimate effectiveness of its own judgments.
Our consideration of the present petition must thus rest upon the unconditional premise that Leggett is to be executed for the murder of Joe King. In these circumstances does the constitutional guaranty of a speedy trial entitle Leggett to demand that the rape cases be heard at once? We think it plain that this inquiry must be answered in the negative.
It is a familiar maxim, recognized by the common law for centuries, that the law never requires the performance of a vain and useless act. Broom’s Legal Maxims (9th Ed.), p. 178. It is difficult to imagine a proceeding more futile than that of bringing to, trial charges against a person already condemned to death. The purpose of a criminal trial is to determine the guilt or innocence of the accused and to impose punishment in the event of a conviction, but no useful purpose could be accomplished by a trial of the rape charges against Leggett. A finding of guilt or of innocence would be wholly without legal effect, a matter of academic interest only.
We are all aware that the proceedings against Leggett have been widely publicized. Judging by the record in the original case it might well be necessary to call hundreds of veniremen before an impartial jury could be impaneled. The proceedings could easily continue for days or even weeks, involving great expense to the county and serious inconvenience to many witnesses and prospective jurors. Yet the entire prosecution would really be a mock trial, a parody of justice, accomplishing nothing and indeed being continuously subject to termination by the electrocution of the defendant.
We can find no case holding that the guaranty of a speedy trial requires that the judicial system be exposed to ridicule as a result of a vain proceeding such as that now demanded by the petitioner. The case principally relied upon, State v. Stalnaker, 2 Brevard (S. C.) 44, does not decide the point now before us. There Stalnaker was indicted upon two capital offenses. Although he demanded a trial upon both indictments the state elected to try only one case, in which Stalnaker was sentenced to be hanged. He was later pardoned, however, and it was then held in the case cited that under the Habeas Corpus Act he was entitled to be discharged from the second indictment. The Habeas Corpus Act was an English statute, adopted by many states as part of the common law, which required a prisoner to be tried within two terms of court. See Cooley’s Constitutional Limitations (8th Ed.), p. 646. Thus the Act was a forerunner of, and similar to, our own statute on the subject. Ark. Stats., § 43-1708. We have already held that Leggett is not entitled to a dismissal of the rape charges by reason of this statute, Leggett v. State, 231 Ark. 7, 328 S. W. 2d 250, and consequently we have rejected the position adopted by the South Carolina court in the Stalnaker case.
It is our conclusion that the guaranty of a speedy trial cannot reasonably be construed to entitle the petitioner to a hearing upon the rape charges as long as he is under a sentence to death upon the conviction for murder.
Writ denied.
MoF addin and Johnson, JJ., dissent.