TEMPLE, J.

This is an application for a discharge from custody, on habeas corpus, by the petitioner, who is held under two informations filed in the superior court of Santa Clara County, upon two separate charges for murder. The informations were filed, August 15, 1900. Since then, defendant has been tried three times upon one charge, and once upon the other, and each trial resulted in a mistrial, because the jury failed to agree. The last jury was discharged March 6, 1901. Since that period neither case has been upon the calendar for trial. Eighty-four days had elapsed since the discharge of the last jury before this petition was filed. The delay was not caused by the defendant or with his consent. No witness for the prosecution has been absent or ill. There are three departments in the superior court of Santa Clara County. During said eighty-four days, one department has been occupied fifteen days only in the trial of criminal cases, and the other two have not been engaged in criminal trials at all.

On the 20th day of May, 1901, and after more than sixty days had elapsed since the discharge of the last jury, the petitioner applied to the superior court, upon notice, for a dismissal of the prosecutions against him, and, upon the hearing, showed by competent evidence all the facts above set forth. No showing to the contrary was made. No reason was shown at that time, or at any time, why the cases had not been brought to trial, but the motion was nevertheless denied.

The return shows, simply, that the sheriff held the defendant by virtue of a commitment made by a justice of the peace, dated August 9, 1900. It is conceded that the facts are correctly stated in the petition.

Section 1382 of the Penal Code provides that the court, unless good cause is shown to the contrary, must order the prosecution to be dismissed in the following cases: 1. If an indictment or information has not been filed against him within thirty days after he was committed to answer; 2. When, if the trial has not been postponed upon his application, he is not brought to trial within sixty days after filing the indictment or information. The constitution (art. I, sec. 13) guarantees to every person charged with a crime a speedy public trial.

In People v. Morino, 85 Cal. 515, this court said: "The legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial"; and then, after setting out section 1382 of the Penal Code, proceeds: "The court below, in denying the defendant's motion, said: `The question you raise I have considered before, and, under my construction of the law, it is discretionary, and not mandatory, and I will presume the court was engaged in the trial of other causes.' We think this is not a proper construction of the law. A party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important, or to prolong his imprisonment, without such trial, beyond the time provided by law. The statute is imperative. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed. Here, no cause for delay was shown. It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without a trial, it was for the prosecution to show it. The court could not presume it. Under the facts as shown, the case should have been dismissed, and it was error to deny the motion."

That case has never, so far as I know, been called in question, and it decides some important points.

1. The statute is a construction of the constitutional provision, so far as to indicate what is a reasonable time within which the case should be brought to trial, in order that the constitutional guaranty may be kept. And it may be fairly interpreted to mean that this guaranty is violated whenever sixty days is allowed to elapse without a trial, there being no good reason for delay, and the defendant not consenting thereto.

2. And, in the second place, it decides that it is sufficient for the defendant, in order to make out his case upon a motion for a dismissal in the trial court, to show that he has been detained without a trial for more than sixty days. Upon such showing the court should dismiss the case, unless good cause for detaining the defendant and for continuing the prosecution is shown on behalf of the people. There is no presumption in such case, at least in the trial court, that the court has acted regularly, or that good cause in fact exists.

It is well to remember that this case involves fundamental rights, and is of universal interest. Around those rights the English have waged their great battle for liberty. Without the narration of the conflicts to which they have given rise, the history of the English people would be a dull affair. The right of the government with reference to persons accused of crime has been, and it yet, a matter of great consideration. It led to the agitation which wrung from power the Great Charter, the Petition of Right, and the Habeas Corpus Act. All the great achievements in favor of individual liberty, of which the English people are so justly proud, may be said to have come through contests over the rights of persons imprisoned for supposed crime.

And justly it is deemed a matter of the utmost importance. 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 this is precisely what the state has covenanted with each inhabitant that it will not do. In this one provision of the constitution the state speaks as did the English sovereign in the Great Charter in 1215. It is an assurance from the sovereign, Nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.

Hallam says, referring to this, "From the era, therefore, of King John's charter it must have been a clear principle of our constitution that no man can be detained in prison without trial." (2 Hallam's Middle Ages, 342.)

The state, then, in a criminal case, is not only a party litigant, and, as such, bound to use diligence to prepare for trial, on pain of having its case dismissed, but it holds the defendant in custody upon this express guaranty for a speedy trial, and that it will not continue to hold him, save under a legal verdict declaring him guilty, — that is, without trial.

In the charter, what has been called a general jail delivery was required in each county once each year. The act of Parliament provided that a session of the court of oyer and terminer should be held twice a year in each county. The court was to inquire into the cause of the confinement of every person confined, and it was expected to try or discharge, at least on bail, all who had not been tried. The Habeas Corpus Act (31 Car, II) also contained provisions intended to insure speedy trials.

It seems that the means of enforcing this charter, or the rights there assured, was from the first enforced through the writ of habeas corpus, which has itself been called the safe-guard and the palladium of our liberties. All agree that the use of this writ was frequent after the Great Charter, but it is not clear whether it was in existence before. It was the refusal of this writ, or delays in its use, which led to the Petition of Right and to the Habeas Corpus Act. It was soon found useful in many other respects, but it cannot be doubted that its most valued function was to enforce the rights secured by these memorable charters and laws, and, so far as I know, such use was never called in question in England.

In this country it has sometimes been denied that a defendant held to answer upon a valid indictment or information can be so discharged. It was so held in this state, in Ex parte Strong, 31 Pac. Rep. 574. It was there said that the allegations of the petition, if true, showed that it was the duty of the superior court to dismiss the prosecution, "but until the information is dismissed, the imprisonment is lawful." In Strong v. Grant, 99 Cal. 100, it was said, in substance, that in passing upon a motion for a dismissal the court acted judicially, and could not be compelled by mandamus. In a concurring opinion, the chief justice said relief could be had in such a case through the writ of habeas corpus, and this was finally so held by the court in Ex parte Vinton (Col., 1897), 47 Pac. Rep. 1019.

So far, I presume, all will agree, and I have alluded to the sources from which the idea of the constitutional and statutory provisions were derived for the sake of the remaining question, the entire difficulty in regard to which, in my views, comes from certain inconsistent decisions of this court. The constitution only guarantees a speedy public trial; the code, in effect, that an accused person must be tried within sixty days after filing the indictment or information. If tried within that period, and a new trial is granted by the superior court or obtained on appeal, it is contended the statute has no further application to the case. A trial has been had within the period prescribed, and the requirement of the statute has been fully satisfied. So far as the statute is concerned, he could be lawfully held for the balance of his life. And the same result could follow, although no trial was had within sixty days, if good cause were shown why it was not tried within that period, or a continuance was had beyond that time by consent of the defendant. If a material witness could not be procured within that time, or the defendant was too ill to be tried, he would thereby lose all possible benefit of the statute. For, if the letter of the statute is to control, it certainly does not require that the trial shall be had within sixty days, where good cause is shown, or the defendant consents to delay. And if it has no force after sixty days have expired, it could not apply to the cases supposed, at all. And the same contention might be indulged in regard to the constitutianal guaranty of a speedy trial. If the accused has been tried, although the trial resulted in a mistrial, it might be said with equal plausibility that he has had a speedy trial, and the guaranty of the government for his benefit has been kept. And is this all that is left to us of these great achievements in the direction of securing individual liberty, as against the government?

It must be remembered that in construing our Declaration of Rights, there is no presumption that the government or its officers will act justly, but the contrary. These sections imply possible oppression, and are designed to enable the victim to assert his rights, even as against the government. The very first section in that chapter of our constitution asserts that the right of all men to enjoy and defend life and liberty is inalienable. Then follow twelve sections, all calculated to secure to individuals this right, as against the government. To the same end, section 13 declares the right to a speedy public trial. This certainly, has no other function than to protect those accused of crime against possible delay, caused either by willful oppression, or the neglect of the state or its officers. For, no doubt, as said by Blackstone (Commentaries, book 3, p. 138), "persons apprehended upon suspicion have suffered long imprisonment, merely because they were forgotten."

Our Declaration of Rights differs from the great English charters, in that it is not an assurance to the individual from a sovereign, but it is a command and a limitation of power upon state officials by the people, who created the formal government. Either is a recognition of the fact that the state cannot rightfully hold in prison even an accused person longer than is necessary that he may be tried, before trial had and judgment rendered.

The imprisonment after the lapse of sixty days is just as oppressive, and, if unnecessary, as much a violation of the rights of the accused person, as within the sixty days. There is no reason why the legislature should be desirous of protecting the rights of an accused person for sixty days, and be indifferent to his fate afterwards. To attribute such ideas to the legislature, is to charge it with folly. There is very little meaning or benefit in the statute, unless it is construed as it was in People v. Morino, 85 Cal. 515, and in People v. Buckley, 116 Cal. 146. Regarded as a provision to enforce this constitutional guaranty, its effect must be held to be, that an unexcused delay of sixty days, at any time, to try a defendant will entitle him to have the prosecution dismissed. Without this statute, it may be doubted whether the prosecution could be dismissed as a penalty for delay. In some states I find a disposition to minimize the rights of an accused person, and it is sometimes provided, simply, that, unless tried, he may be discharged from custody.

The terms of the constitutional provisions on this subject vary in the different states. In two or three there is no constitutional declaration upon the subject, but all, I think, have statutory provisions providing for the rights of accused persons in this regard. I cannot find that this precise question, under a statute like ours, has been decided. The view here taken was suggested in In re Murphy, 7 Wn. 257. (See also State v. Kuhn, 154 Ind. 450, where People v. Morino, 85 Cal. 515, was approved; also, In re McMichen, 39 Kan. 406.)

This construction was assumed by this court in Ex parte Ross, 82 Cal. 109. A mistrial within the period of sixty days was had in that case, and it was there assumed that another trial must be had within sixty days after the mistrial. That the defendant had been brought to trial, and a mistrial had, excused the delay until that time, and it was assumed that there must elapse sixty days during which there was no excuse for delay.

And, indeed, a mistrial is not a trial, within the meaning of the constitutional or statutory provision. The fact that there has been an attempted trial may constitute the good cause which the prosecution is required to show to excuse delay; but the speedy trial which is guaranteed is for the purpose of determining the guilt or innocence of the accused person, and the guaranty of the constitution, and of the Habeas Corpus Act of England, are of no substantial advantage if they mean less than this. On this subject it is said in Church on Habeas Corpus (sec. 254): "The fact that a former conviction on an indictment has been reversed and a new trial ordered leaves matters to stand as if there had never been any trial on the indictment. In the eye of the law, he has not been tried at all," etc. This is the reason why it is held that by a mistrial he has not been in jeopardy, and cannot avail himself of it as a defense. If he has been tried in the legal sense, he could do so.

It only remains to say that the statute does not authorize the state or its officers to hold an accused person in imprisonment unnecessarily, even for sixty days. As already stated, when the prosecution is begun, the state becomes a party, litigant, and, as such, must diligently prosecute its case. No unnecessary delay against the will of the defendant is to be allowed to it.

The defendant is discharged from custody.

Van Dyke, J., Beatty, C.J., and Henshaw, J., concurred.

McFarland, J., dissented.