(dissenting). Two separate informations were filed on January 25, 1956 in the Pulaski Circuit Court, each charging the appellant Leggett with the crimes of rape (§ 41-3401 Ark. Stats.). He has been in custody ever since and has never been tried on the rape charges because he was tried and convicted on a first degree murder charge and is now awaiting execution on the murder charge. In Leggett v. State, 231 Ark. 7, 328 S. W. 2d 250 (decided on October 19,1959), we held that Leggett was not entitled to the benefit of § 43-1708 Ark. Stats, as regards the rape charges.
Leggett filed, on July 14, 1959, his pleading in the Pulaski Circuit Court entitled, “Bequest for Trial”, on the rape charges. When the Circuit Court refused to proceed with the trial of either of the rape cases, Leggett filed in this Court a petition for writ of mandamus to require the Circuit Court to proceed with the trial of the rape cases. It is clear that we have jurisdiction of such a petition, even though Leggett has mis-styled his pleading. In Pellegreni v. Wolf, 225 Ark. 459, 283 S. W. 2d 162, we issued a writ of procedendo ad judicum directing a Circuit Judge to proceed with the trial of a prisoner who was then incarcerated in another State. I maintain that if a prisoner incarcerated in another State is entitled to a trial on pending charges in Arkansas, then a man incarcerated in the death house'iii Arkansas is entitled to a trial on any pending charge in this State.
Article 2, Section 10 of the Arkansas Constitution says, “In all criminal prosecutions the accused shall enjoy a speedy and public trial____” I emphasize that the Constitution says “in all criminal prosecutions”. The Constitution does not make any exception as regards a man in the death house awaiting execution; and when one Court starts whittling away the Constitutional rights of one man, then another Court may come along in later years and extend the whittling away process to destroy the Constitutional rights of some other person in some other situation. It is a dangerous precedent for a court to create judge-made exceptions to Constitutional protections; and that is what the majority is doing in this case. We are embarking the Court on a career of “exceptions” to Constitutional protections. I think that the man in the death house is entitled to just as much Constitutional protection as the man incarcerated in the Texas penitentiary in the Pellegreni case.
By refusing to issue the writ of procedendo in the case at bar, the majority is bringing about a situation wherein the execution of the murder sentence will be further delayed. Leggett has raised a federal question in his petition in this case. He will undoubtedly carry this case to the United States Supreme Court; and further delay will result. If this Court now granted the writ of procedendo the Trial Court could require the Prosecuting Attorney to either proceed with the trial or dismiss the pending informations. The Prosecuting Attorney could safely dismiss both of the rape informations, because limitation does not run against a capital case (§ 43-1601 Ark. Stats.) and rape is a capital case (§ 41-3403 Ark. Stats.). So, should anything happen to prevent Leggett’s execution on the murder charge, the State could still refile the rape charges. Leggett could not plead former jeopardy against the refiling of the rape charges, because jeopardy does not attach until the trial jury is sworn in the case. See Jones v. State, 230 Ark. 18, 320 S. W. 2d 645.
It is self-evident that what Leggett’s attorney is trying to do is to get him tried on the rape charges so the attorney can have another trial jury before which to argue evidence about Leggett’s alleged insanity. Even if Leggett were tried on the rape charges and the jury should find that he was insane at the time of committing the rapes, such finding would have no bearing on the murder charge: because the rapes and the murder were different offenses, committed at different times, and the mental status of Leggett would be decided by different juries; and there does not have to be any consistency between verdicts of different juries. In Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64, we said:
‘ ‘ The answer to this argument must be that the law imposes no requirement of consistency upon jurors hearing separate cases which are consolidated for purposes of trial. If such separate cases were being tried separately, by different juries, there would be no assurance of consistency in the verdicts, and no greater assurance of consistency is insisted upon when one jury tries both cases together. ’ ’
So I earnestly submit that in order to keep our jurisprudence straight, we should issue the writ of procedendo in this case and thereby hold that the Constitutional guaranty of a speedy trial applies to all persons - convicted felons awaiting death sentence, as well as any other felon. We should not embark on a career of engrafting exceptions onto Constitutional guaranties.
For these reasons I respectfully dissent.
Johnson, J., joins in this dissent.