(Syllabus.)

Time of Trial and Continuance — Right to Dismissal for Delay in Prosecution. Where a person charged with crime is not brought to trial at the next term after the charge against him is triable, and seeks to have the prosecution dismissed under the provisions of section 2913, Comp. St. 1921, he must affirmatively show that the delay in bringing the cause to trial was on the part of the state through its prosecuting officers, and, if on bail, he must affirmatively show that he demanded a trial and resisted the continuance of the case from term to term. When he has done that, the burden is then on the state to show good cause for the delay.

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Appeal from District Court, Ottawa County; J.J. Smith, Judge.

Criminal prosecution by the State against Q.P. McGhee on an information charging the defendant with unlawfully aiding a prisoner to escape. Defendant's motion to dismiss the prosecution because of State's failure to bring the case to trial within the time required by law was sustained, and the State appeals. Appeal dismissed.

Perry Porter, for defendant in error.

CHAPPELL, J. The defendant filed his motion to dismiss the case, for the reason that more than six terms of court had passed since the information was filed, and the state had failed to try said cause, although defendant was present at each term of court demanding such trial.

The trial court heard evidence on this motion, and found that more than six terms of court had passed since the information was filed, and that defendant had been present demanding trial, and that the state had shown no sufficient cause why said case had not been tried, and thereupon dismissed the case.

No briefs have been filed by the state, and no appearance made for oral argument. An examination of the record discloses that the case was properly dismissed for failure of the state to prosecute within the time required by law.

For the reason stated, the appeal is dismissed.

DAVENPORT, J., concurs. EDWARDS, J., absent, not participating.