concurring. The majority has reached a result that is inevitable and necessarily correct, however regrettable it may be that one who seems to have been guilty of the crime with which he was charged beyond a reasonable doubt will escape punishment. It is the primary function of the judicial system to preserve the rule of law, even if the guilty do escape punishment as a result of the courts’ facing up to their responsibility.
This court has spoken on the purpose of speedy trial rules in reference to Ark. Stat. Ann. § 43-1708 (Repl. 1977). In Ware v. State, 159 Ark. 540, 252 S.W. 934, we said:
*** But, as its manifest purpose is to promote dispatch in the administration of justice, it must commend itself to the enlightened judgment of every one who loves law and order as a wise as well as humane enactment. “Justice delayed is justice denied,” says Mr. Gladstone. It is highly important to the public weal that those accused of crime shall be brought to a speedy trial in order that, if guilty, public justice may be meted out without delay. This is as powerful a deterrent to the commission of public offenses as is the knowledge that condign punishment will follow when the lawbreaker is overtaken in his crime. It is also humane and just to the accused, who may be innocent, because it imposes upon the ministers of justice the obligation not to unnecessarily delay the trial of the charge which the State has lodged against him, and to afford him an opportunity to prove his innocence before he has been compelled to endure a prolonged punishment by imprisonment beyond the end of the second term of the court after the term in which he was indicted. These were doubtless the dominant considerations in the minds of the Legislature when they enacted this statute. It has been a part of our laws ever since the State had an existence. These sections are found in the Revised Statutes and in all our digests. They are consonant with that provision of our Bill of Rights, art. 2, § 10 of the Constitution, which declares that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,” and also with art. 2, § 13, which declares that “he ought to obtain justice freely, and without purchase, completely, and without denial, promptly, and without delay, conform-ably to the laws.”
In referring to cases from other jurisdictions, which we said stated the law on the subject, we took a quotation from the opinion in In re Begerow, 133 Cal. 439, 65 P. 828 (1901). The following is an excerpt from that quotation:
“ *** The government cannot take property from the meanest inhabitant without just compensation paid or tendered in advance; but it takes his liberty, which, it has been justly said, is to some extent to take his life, upon a mere charge of crime. This is necessary that society may be protected. But necessity is the only excuse, and to imprison beyond what is absolutely necessary is tyrannous and oppressive. And that is precisely what the State has covenanted with each inhabitant that it will not do.” The prisoner was discharged.
The innocent can be protected only if everyone, even Leroy Alexander, benefits from the protection which we have related to our own constitution. Speedy trial rules are not for the benefit of the state or any of its subordinate jurisdictions. Quite the contrary. They are a check on the state, its jurisdictions and its officials.
I would call attention to the fact that Alexander registered his objection on February 9, 1979, which was prior to the time Aired Harkness raised the same question, which was treated in Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979). Harkness was discharged, even before trial. It would be extremely difficult for Leroy Alexander, or anyone else in his place, to understand if he were treated differently, even though he did not follow his objection with a petition for prohibition.
In order to explain my position and to respond to fallacies in the dissenting opinion, it is necessary to first review some fundamental principles.
The time of the termination of terms of circuit court in Crittenden County and the second judicial district has never been fixed by statute. Actually, the General Assembly has never specified any time for the term of any circuit court in Arkansas to end. When only one judge presided over the circuit courts in the second judicial district, the terms of court in Crittenden County ended when a term of court in another county in the judicial circuit began. Roberts & Schaeffer v. Jones, 82 Ark. 188, 101 S.W. 165; House v. McGehee, 188 Ark. 277, 65 S.W. 2d 21. In Thomas v. State, 196 Ark. 123, 116 S.W. 2d 358, the effect of Initiated Act No. 3 of 1936 was noted. Section 31 [Ark. Stat. Ann. § 43-1702 (Repl. 1977)] of that act, provided that when any circuit court is duly convened at a regular term, it should remain open for all criminal proceedings until its next regular term. This was a change in the law prior to the adoption of that act in that the terms of circuit court in Crittenden County would not end until the next regular term of that court began. The act clearly recognized, however, that the end of a term was determined by the beginning date of the next term. The act did not pertain to divisions of court at all. There was a restriction that prohibited a session of court in one county when its term was still open if it interfered with any other court to be held by the same judge. The judge of a court or of a division, in other words, could not hold a session of court in Crittenden County, when that court had recessed, if it interfered with his holding court in another county.
When the workload in the second judicial district had become too heavy for one judge to handle with dispatch, another division had been created by Act 138 of 1911. The divisions were designated as the first and second divisions. The act directed that the clerks of the various courts in the district should assign all civil cases to the first division and all criminal cases to the second division. The judges were authorized to divide the business in the courts of the district on a basis other than the civil-criminal division by written order if they deemed it expedient. It was not reversible error for a criminal case to be tried in the civil division. The beginning dates of terms of court for both divisions were fixed, not by dates, but by a designated Monday. The judges were not assigned to a particular division and the judges determined between themselves the division in which each would sit. The begining dates of terms of court were fixed for the divisions. First division courts in Crittenden County had terms beginning the twelfth Monday after the first Mondays in February and September. The second division court terms began on the first Mondays in February and September. See Ark. Stat. Ann. § 22-310 (Repl. 1962).
By 1965, two judges were overloaded in the second judicial district and by Act 505 of 1965, provision was made for a third judge. Three divisions of each circuit court in the district were established. The act provided for the election of judges by designated divisions for the first time, but specifically provided that this should not be deemed an enlargement nor a diminution of their power as circuit judges to try and dispose of any litigation or matter which fell within the jurisdiction of the circuit court. Clerks were required to keep separate dockets for criminal and civil cases. The judge of the first division was designated to preside over cases on the criminal docket and the judges of the second and third divisions to preside over cases assigned to the civil docket, but the presiding judge of a division was authorized to assign any case, civil or criminal, from one docket to the other “as may be deemed best for the dispatch of business.” The judges were directed to alternate in presiding over the three divisions. The act provided that on and after January 1, 1967, “the terms shall begin” at times and places fixed in the act. For the first division those terms in Crittenden County began as follows:
First division (criminal): on the third Monday in February and September.
Second division (civil): on the fourth Monday in January and the third Monday in November.
Third division (civil): on the second Monday in May and the fourth Monday in June.
It is clear from the act that all three divisions had jurisdiction to try criminal cases.
Act 505 was amended by Act 12 of 1967, insofar as it related to the second division. The beginning dates of the terms of that division in Crittenden County were designated as the fourth Monday in January and the third Monday in November. Thus, after the passage of the 1967 act, the terms of the circuit court of Crittenden County, Arkansas, began on the following days each year:
The fourth Monday in January (second division).
The third Monday in February (first division).
The second Monday in May (third division).
The fourth Monday in June (third division).
The third Monday in September (first division).
The third Monday in November (second division).
No change has been made in the beginning dates of terms of court in Crittenden County since the 1967 act. Termination dates were not fixed by that act or any other. Courts in the second judicial district have always operated under the general rule of law pertaining to termination of a term of court. This is succinctly stated at 21 CJS 233, Courts, § 151, viz:
A term of court continues until it is finally adjourned or expires by operation of law. The time for the expiration of a term of court by operation of law may be a definite date fixed by statute, or by an order made under constitutional or statutory authority, for its termination.
Where the time of beginning but not of ending of a term is fixed, the term, when it has been duly begun, will continue, and may for all general purposes be considered as in session, until it is adjourned sine die or, in the absence of a previous adjournment sine die, until the time fixed by law for the beginning of the next succeeding term; ***
Act 207 of 1951, Ark. Stat. Ann. § 22-312 (Repl. 1962), did not fix a termination date for any term. It was little more than an extension of the provision of § 31 of Initiated Act No. 3 of 1936 to civil cases. It specifically recognized the general rule of law by providing that the circuit court of each county, and of each division in each county, should be open, by “operation of law, at the beginning of each regular term of such court, as fixed by law, and shall remain open until the beginning of the next such term of the court.” [Emphasis mine.]
This was the state of the law when this court decided Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342. In Gardner, we recognized the existence of the problem of crowded dockets. We spoke of the purpose and effect of Act 505 of 1965, saying:
Thus, it is abundantly clear that one of the main purposes and intended effect of the Act, was to permit the trial judges to transfer cases either civil or criminal from one division to the other so that the litigants in civil cases may obtain justice promptly and without delay, and so that the accused in criminal prosecutions may enjoy the right to a speedy and public trial. The various terms of the circuit courts are fixed by statute. ***
We were then dealing with the provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964), which do not materially differ from a very similar provision of Rule 28 of the Arkansas Rules of Criminal Procedure. This court had, on June 28, 1971, entered a per curiam order adopting rules to require that precedence be given criminal cases by circuit courts. That per curiam order was quoted and it reads:
Pursuant to the provisions of Act 470 of 1971 the following rules are hereby promulgated by the Supreme Court of Arkansas in order that the ends of justice may be more efficiently and expeditiously served.
I
All courts of this state having jurisdiction of criminal offenses shall henceforth, except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said courts.
II
All courts of this state having jurisdiction of criminal offenses shall henceforth, in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial.
We then stated the purpose of these rules, saying:
It was the purpose and intent of our per curiam order to facilitate by rules of this court, under the authority if not the mandate of Act 470 of 1971, speedy trials in criminal cases under the authority already vested in the trial courts and under the existing statutory law pertaining to the various divisions of multiple-division circuit courts. The only effect of our per curiam order was to require, except for extraordinary circumstances, that the trial of criminal felony cases take precedence over other matters before the courts and as between the criminal cases, those cases in which the accused is incarcerated while awaiting trial, take precedence over cases where the accused is free on bond.
The court then held that the expiration of the term, within the meaning of Ark. Stat. Ann. §§ 43-1708 — 43-1710, applied to terms in any one of the divisions in which the accused could be tried in a multi-division court and did not apply to the combined over-lapping terms of the combined divisions. This was a clear recognition that all three divisions of the circuit court of a county in the second judicial district had jurisdiction to try criminal cases and that they should be transferred from one division to another in order to guarantee a speedy trial to an accused. The appellant in that case was not discharged because the second term of no single division of the court had expired when his case was set for trial. Thus it is clear that, at that time, an accused would have been entitled to release if two full terms of any division had expired when his case come on for trial. It is also clear that this court regarded the divisions (not the judges, who alternate) as having separate and independent terms.
We were next confronted with the speedy trial situation in a multi-judge district in State v. Knight, 259 Ark. 107, 533 S.W. 2d 488, which arose in the Circuit Court of Crittenden County. We were again dealing with Ark. Stat. Ann. §§ 43-1708 — 43-1710, because the Arkansas Rules of Criminal Procedure had not become effective. Of course, we still treated the divisions as if they were separate courts, insofar as terms of court were concerned. We applied the rule of Gardner in determining that no two terms of any division had expired before Knight’s trial was set. It is also significant that we specifically pointed out that the end of a term in any division ended when the next term in that division began. Otherwise, divisions were not significant, because it was made clear that Knight could have been tried in any division of the court. It was urged by the two dissenters in that case that we should apply the rule as appellant seeks to have done here, even though, at the time Knight was decided, there were three divisions of the circuit court of Crittenden County.
Much has changed since Knight was decided. The first change was the adoption of the Arkansas Rules of Criminal Procedure, effective January 1, 1976. Although we had made it clear that the reservation of certain terms of court for civil cases could no longer be accepted because criminal cases were being held on the docket far too long, the effect of Criminal Procedure Articles I and II, quoted above, was preserved. Article VIII of the Arkansas Rules of Criminal Procedure is addressed to speedy trial. Rule 27.1 is the very first rule in that article. It was intended to retain the substance of the earlier rules adopted by this court in the per curiam order of June 23, 1971. See Commentary to Article VIII. The rule is as follows:
All courts of this state having jurisdiction of criminal offenses shall:
(a) except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said court; and
(b) in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial. [Emphasis mine.]
Therefore, criminal cases were to take precedence in “civil” divisions, and the trials of those incarcerated were to take precedence over all other cases in any and all divisions.
We then undertook to establish standards to govern in determining when an accused was to be discharged for failure to accord him a speedy trial. The resulting rules were adopted in an effort to bring some measurable standards, in the form of specificity, to the rather indefinite balancing process mandated by cases such as Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). See Commentary to Article VIII. The pertinent rules, like our statutes which they supplanted, require no showing of prejudice. The purpose of the rules was to eliminate the necessity for such a showing. When the time allowed has expired, the prejudice is presumed, and for good reason. For example, how does one show on motion to dismiss, how the memory of a witness has become befogged or untrustworthy by passage of time, in a way that this factor can be balanced in the scales with other pertinent factors? No showing of prejudice was ever required under Ark. Stat. Ann. §§ 43-1708 — 43-1710. A showing of prejudice has never been required in the application of our own speedy trial rules, as distinguished from those cases where Barker alone is applicable.
There was a prime example of the memory failure of a witness in this case, and the net result of a memory refreshment was unfavorable to appellant. On the other hand, it is possible that the witness, due to passage of time, might have given a version less favorable to appellant than her original statement. In order to make the governing periods of time specific, they were stated as limitations and they should be applied as an absolute bar to prosecution. See Ware v. State, 159 Ark. 540, 252 S.W. 934. We have held Rule 28.1 (b) is jurisdictional and that prohibition is available to an accused who has been denied the right to speedy trial. Callendar v. State, 263 Ark. 217, 563 S.W. 2d 467. This is also applicable to Rule 28.1 (a). See Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979). A reading of the rules makes this effect obvious and mandatory. Pertinent portions of the rules are as follows:
RULE 28. LIMITATIONS AND EXCLUDED PERIODS
RULE 28.1 Limitation
(a) any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
RULE 28.2 When Time Commences to Run.
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;
(b) when the charge is dismissed upon motion of the defendant and subsequently the defendant is arrested or charged with an offense, the time for trial shall commence running from the date the defendant is subsequently arrested or charged, whichever is earlier;
RULE 28.3 Excluded Periods. [Not material to this case.]
RULE 30. CONSEQUENCES OF DENIAL OF SPEEDY TRIAL
RULE 30.1 Absolute Discharge.
(a) Subject to the provisions of subsection (b) hereof, a defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged and for any other offense required to be joined with that offense.
(b) An incarcerated defendant not brought to trial before the running of the time for trial as provided by Rules 28.1 — 28.3 shall not be entitled to absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.
(c) The time for trial of a defendant released pursuant to subsection (b) hereof shall be computed pursuant to Rules 28.1 (b) and 28.2.
RULE 30.2 Waiver
Failure of a defendant to move for dismissal of the charges under these rules prior to a plea of guilty or trial shall constitute a waiver of his rights under these rules.
The next change to take place was the adoption of Act 432 of 1977. It was entitled:
AN ACT to Establish the Circuit Court and Chancery Court Circuits in this State; and for Other Purposes. [Emphasis mine.]
Section 1 provided that, effective January 1, 1979, the several circuit-chancery court circuits in the state should be constituted as specified in that statute. The second circuit was composed of one less county than the previous second judicial district had been, but the numbering of the district was a fortuitous circumstance as a comparison of the numbering of other districts will show. It was provided that the electors of that circuit should elect three circuit judges and three chancellors, without any reference whatever to divisions.
The premise of the dissenting opinion that Crittenden County has three divisions is unsound. There are no divisions of any circuit since the passage of Act 432, which was effective January 1, 1979. Beaumont v. Adkisson, Judge, 267 Ark. 511, 593 S.W. 2d 11 (1980). Few, if any of the judicial districts retained their identity when that act became effective. The General Assembly in a comprehensive rearrangement of judicial districts did not see fit to perpetuate the division concept. Instead of multi-division districts, we now have multi-judge districts. Where judges were formerly elected by divisions, they were elected by positions under Act 432. It was clearly recognized in Harkness v. Harrison, supra, that the laws distinguishing civil and criminal divisions were abolished by this act. We said that we would count the terms of court of each division when Rule 28 is in issue. Although we listed terms there by divisions, we said that it could readily be seen that unless excludable periods precluded the application of Rule 28, Harkness had not been timely brought to trial. I see absolutely no suggestion in that opinion that terms of court still related to divisions and that the termination date of a term of court had not been affected by Act 432. We did not make any calculation of terms in Harkness; that decision was based solely on the division concept, but we pointed out that the September 1978 term of Division I had passed. It had, under any system of calculation. We also said that the January 1978 and November 1978 terms of Division II had passed. They had, whenever the termination date might have been. But it is important to note that we granted prohibition and that Harkness would not have been entitled to prohibition unless three terms of court had passed. Therefore, it was necessary to consider that three terms had passed before the date set for his trial, or he would only have been entitled to release from custody. Harkness does not mandate a result different from that reached in the majority opinion.
There was no occasion to overrule either Gardner or Knight when Harkness was decided because there is absolutely no conflict or inconsistency among the three. Neither Gardner nor Knight held that if three terms in any one division had not run under Ark. Stat. Ann. § 43-1708 — 43-1710 (Repl. 1977) (not Rule 28 as indicated in the dissenting opinion, because it was not then effective), an accused would not be entitled to discharge. To the contrary, in both Gardner and Knight, we held that three terms had not passed in any one division.
In this case Alexander raised the question about a month earlier than Harkness did, but did not seek prohibition. Instead, he pursued the question on appeal, as he had a right to do. Harkness was arrested on August 12, 1978, and the information was filed on September 5, 1978. Both Harkness and Alexander were in a sort of twilight zone. It is quite clear that when Act 432 of 1977 became effective, there were no longer any divisions of the circuit courts. See Beaumont v. Adkisson, Judge, supra; Harkness v. Harrison, supra. Since those courts which had been multi-division courts became only multi-judge courts, the terms of circuit court in any county in a multi-judge district became terms of court for the circuit court of that county and not for divisions of the circuit court. Divisions previously had different terms, but judges did not, and do not, have terms of court in Crittenden County, or in any other county in the district, or anywhere else in the state. The beginning dates of the terms of court in Crittenden County were fixed by Ark. Stat. Ann. § 22-310 (Supp. 1979). They are:
1. The fourth Monday in January
2. The third Monday in February
3. The second Monday in May
4. The fourth Monday in June
5. The third Monday in September
6. The third Monday in November.
Therefore, when Act 432 of 1977 became effective each term of circuit court in Crittenden County ended when the next term began. But in the case of both Harkness and Alexander, the system used in Gardner and Knight was applicable until January 1, 1979. Consequently, we find that Alexander was arrested and charged during the February, 1978, term of Division I, the January, 1978, term of Division II, and the June, 1978, term of Division III. The first term of the Circuit Court of Crittenden County under Act 432 began on January 22, 1979. The effect of Act 432 of 1977 was that all terms of all divisions ended on that date. So, on January 22, 1979, two terms of Division I had expired, i.e., on September 18, 1978, and January 22, 1979. Two terms of Division II had expired, i.e., on November 20, 1978, and January 22, 1979. Although only one term of Division III had expired, Alexander was entitled to be discharged from custody because two terms of court had expired in two “divisions” but his trial was not barred until a third term expired. He was tried on February 27, 1978.
A new term of court had commenced on February 19, 1979, so a third term had expired on that date, and Alexander was entitled to absolute discharge. The bar was absolute so it was jurisdictional. It resulted from our own prescriptions of definite and ascertainable standards and from the abolishment of divisions of circuit courts.
I am unable to understand how it can be said there is no longer any provision for three divisions of the circuit courts in the second circuit (most of the counties of which were in the second judicial district) but only for three judges, as stated in the third paragraph of the dissenting opinion, and still be said “when another circuit judge from another division begins his term.” I would also point out that “two or more circuit courts of the same circuit” in Ark. Stat. Ann. § 22-312 (Repl. 1962) in the quotation in the tenth paragraph of the dissenting opinion are not the same as two or more circuit courts of the same county. There is only one Circuit Court of Crittenden County or of any other county in Arkansas. The Circuit Court of Crittenden County and the Circuit Court of Poinsett County, for instance, are two circuit courts of the same circuit, and both may be in session at the same time.
I find nothing in the majority opinion stating that terms of court begin by divisions after January 1, 1979. The situation in the second circuit is unique, only in that it is the only circuit in which there are three, rather than one or two or five circuit judges, and the regular terms of court occur more frequently.
I see no reason or necessity to change our rules to have an identical time period in every circuit, unless or until the General Assembly may establish a single annual term for each circuit court. The nine-month limitation is a protective outside limitation. Speedy trial standards must permit a balancing of the rights of an accused and the judicial resources of the state. In counties where there are frequent terms of court, judicial resources should permit a more expeditious disposition of criminal charges, particularly when the accused is held in jail for trial on a specific charge. New terms permit new docket settings on a clean slate.
The proposal that the term concept for speedy trial rules should be abandoned overlooks the fact that in many districts the nine months period is rather meaningless because the required two terms will have already expired. There has been a concerted effort to bring about a reduction of the time allowed to bring an accused to trial. The nine months period only comes into play in those districts where terms of court may last for more than four months. Some last as long as six months. Yet consideration must be given to the fact that in some districts a single circuit judge may have as many as five counties in which he must endeavor to maintain some degree of currency of both criminal and civil dockets. It is only reasonable that in a district having numerous terms of court and two or more judges, a quicker disposition of cases should be expected than in a single judge district. But in no district do we even approach the ultimate 100-day limit mandated by Congress for the federal courts. See 18 U.S.C. § 3161 (1976). But it is, of course, essential that we balance the rights of the accused and the ability of the courts to hold court and dispose of cases in any particular county.
I would reverse the judgment and dismiss the case.