shall afford the prosecution a reasonable opportunity, by the fair and honest exercise of reasonable diligence, to prepare for a trial; and if the trial is delayed or postponed beyond such period, when there is a term of court at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his right to a speedy trial."

In Ex parte Stanley, 4 Nev. 116, it is said: "But what is to be understood by a speedy trial is the embarrassing question now to be determined. It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense, hence, whilst it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence or exertion from the courts, or the representatives of the state; nor does it contemplate that the right of a speedy trial which is guaranteed to the prisoner shall operate to deprive the state of a reasonable opportunity of fairly prosecuting criminals."

The Legislature of this state has determined for us, not unreasonably it seems, what, in certain cases at least, is to be regarded as a speedy trial within the meaning of the constitutional requirement. As to a defendant indicted or charged by information and committed to prison it is in effect declared that a speedy trial means a trial before the end of the second term of court after indictment found or information filed, unless the delay shall happen on the

prisoner's application, and that as to a defendant out on bail it means a trial before the end of the third term of court, unless the delay happens on his application, or for want of time to try the case; and unless in either case upon an application of a defendant for discharge, the court is satisfied, notwithstanding the lapse of such terms that there is material evidence for the state not then obtainable, but which the prosecution has made reasonable exertions to obtain, and that there is just ground for believing the same obtainable at the succeeding term; in which event the court is authorized to grant a continuance and remand or admit the defendant to bail.

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Under similar statutes a delay caused by accident or unforeseen circumstances, though not specifically mentioned, has been held sufficient to prevent a defendant's discharge, such as the sudden illness of the judge which requires an adjournment of the court or term or renders the holding. thereof impossible, and inefficient legislation to enable a jury to be obtained. In Tate's case, 76 Ala. 484, it was said: "When there have been legislative enactments, reasonably adapted to secure a speedy trial, the constitutional guaranty can not operate to discharge the accused, because of mistaken legislation, or because of a failure to foresee and provide for every contingency which may occasion delay. * * * The accused is not entitled to a discharge by reason of any delay made necessary by the law itself." That statement is quoted approvingly in Sample v. State, 138 Ala. 259, where a delay was caused through the lack of statutory authority in the court to issue a special venire for a jury, the regular jury box having been exhausted. There is, however, some conflict in the authorities as to what accidental or unforeseen causes will render a delay excusable under such statutes. The right granted by the constitution may be waived, as by consent to continuances, and perhaps the failure of one out on bail to present himself for trial as required by the conditions of his bond; and the privilege of insisting upon the right may be lost for a time, as where an accused escapes from

prison or becomes a fugitive from justice. In this case there is no question of accidental delay; nor is there a question of waiver or loss of the right, unless an accused becomes deprived of it during imprisonment in the penitentiary for another offense, the only reason here assigned as an excuse for not bringing on a trial being the fact of defendant's commitment to the penitentiary under another information before the expiration of the time limited for bringing him to trial upon the pending one, and his con tinued imprisonment therein for more than three years.

Two cases are cited by counsel for the State as sustaining their contention that the statute does not apply to a defendant serving a term of imprisonment in the penitentiary under sentence for another offense. One of the cases cited is State v. Brophy, 8 O. Dec. 698, a decision of one of the courts of common pleas of Ohio. There, the defendant was sent to the penitentiary for four years for forgery, and thereupon other indictments against him were "laid away." In disposing of the defendant's subsequent motion under the statute for his discharge so far as the other offenses were concerned, the court merely said: "He was practically dead as a civilian, and before he could make this demand he must serve his sentence. The sections above referred to do not apply to a man who is in the penitentiary. He must be either in jail or out on recognizance. No reference was made to the constitutional right of an accused to a speedy trial. The proposition that a convict cannot be tried for another offense is unsound. The case, however, supports the State's contention on the construction of the statute.

The other case is that of Gillespie v. People, 176 III. 238. In that case two defendants, Dunn and Gillespie, had been indicted at the March term, 1897. A trial was had at the following November term, and they were convicted. Prior to the trial each defendant moved for his discharge because he had not been tried within the time provided by statute. The statute relied on was one applying to any person committed for a criminal, or supposed criminal,

offense. In reference to Gillespie the court said: "The statute could not be applied to the case of the defendant Gillespie in any event, since he was not committed for this offense. He pleaded guilty to another felony at the March term, 1897, of the same court, and has been in the state penitentiary at Chester ever since, except when brought into court and tried on this charge. This was sufficient answer to his application in any event." It does not appear from the report of the case that Gillespie had ever been committed or even arrested upon the particular charge; the indications are that he had not. It is stated in the opinion that he pleaded guilty to another felony at the March term, but the date of such plea is not given. It is, however, stated that the indictment as to which the right of discharge was asserted was returned on March 23, 1897, and that the defendant was arraigned thereon and pleaded not guilty at the November term, on November 12, 1897. It would seem probable, therefore, that Gillespie had not, in fact, ever been committed upon the indictment complained of, but being already in the penitentiary was brought therefrom to be placed on trial. Indeed, for all that appears in the reported matter, he may have been taken to the penitentiary before the return of the indictment. However this may be, the question was disposed of in the opinion by the statement above quoted, which does not explain the reasons upon which it was concluded that the statute did not apply further than that the defendant had not been committed for the offense. It does not appear that the constitutional right of a speedy trial in the absence of a statute applying to the case was insisted upon, nor that there had been a delay which could reasonably be declared capricious, vexatious or oppressive.

In a case in New York, the original report of which we have not seen, a conclusion seems to have been announced opposed to the proposition insisted upon by the prosecution. The case is referred to in the notes to In re Begerow, 56 L. R. A. 513, and it is there said to have been held in People v. Smith, 2 N. Y. Cr. Rep. 45, that

a defendant was entitled to be discharged on his own recognizance where several indictments had been found against him at the same term, and under one he had been sentenced to five years' imprisonment, and at the expiration of the sentence it was sought to try him on another. The court is reported as saying: "They should all be tried when the witnesses are alive and accessible, and when the testimony for both sides is readily to be had."

Under a statute plainly applicable to a defendant, it was held in West Virginia that his illegal confinement in the penitentiary for another offense was not a sufficient excuse for a failure to try him upon a pending indictment within the period prescribed by the statute. (Dudley v. State, 55 W. Va. 472.) The statute applied to "every person charged with felony and remanded to the circuit court for trial." The defendant, who had been previously sentenced to the penitentiary for the term of 18 years, was released upon a conditional pardon, and shortly thereafter was arrested upon another charge, and after such arrest and before. indictment found was redelivered to the penitentiary by executive order to serve out the balance of his previous sentence, by reason of the breach of the condition of his pardon. An indictment was afterwards returned, charging him with the offense for which he had been last arrested, resulting in his being brought from the penitentiary to the court for trial, and, the state not being ready for trial, his return to the penitentiary to be confined therein, as ordered by the court, under the former sentence, and later an order on motion of the prosecution retiring the indictment from the docket. He was subsequently released from the penitentiary on habeas corpus by reason of the illegality of the executive order restoring him thereto. Immediately upon such release he was again arrested and lodged in the jail of the county where the indictment aforesaid was pending, and thereupon he petitioned for discharge upon habeas corpus. The court said, after quoting the

statute: