The opinion
CATES, Judge
(dissenting).
In all trials it is the plaintiff who seeks redress.
Indictments are presumed by law to be laid against innocent men.
Here we are not dealing with a convict serving time on another sentence. Rather, Autry was twenty-four months in the county jail waiting to face a petty jury.
I.
Alabama no longer has a commission of jail delivery. The only proximate command is in the precatory language of the last clause of Code 1940, T. 13, § 38, which reads:
“The chief justice shall * * * take care that prisoners are not allowed to remain in the jails without a prompt trial.”
Whether or not pleas for prompt trial should be addressed in care of the chief justice or to the presiding circuit judge, I am not informed. In view of such a vague departure from the common law without any other compensating ameliorative statute, the moving burden should be on the State.
I think that the Court of Appeals of New York is correct in holding that the prosecution bears the initiative in bringing a prisoner to trial speedily. People v. Prosser, 309 N.Y. 353 , 130 N.E.2d 891, 57, A.L.R.2d 295. See also N.Y. Code Cr. Proc. § 668 .
After Prosser, the New York Legislature set up a detailed procedure under which a prisoner can demand trial which must be had within 180 days after demand. Code Cr.Proc. § 669-a. Subdivision 2 provides that after request the action is due to be dismissed with prejudice if not tried in the 180 day period.
My attention has not been called to any extant Alabama statutes as to speedy trial after indictment. Hence, under traditional principles, a court should look to the Constitution and its common law background.
At common law it was early established that trial of a felony must be had as early as the second term of court after initial commitment. This right was made specifically enforceable by the Habeas Corpus Act. Cooley’s Constl.Lim. (8th Ed.) 646, fn. 5 and 717. Jenks, The Story of the Habeas Corpus, 18 L.Q.R. 64.
Like New York, Alabama no longer allows this matter, post-conviction, to be raised by habeas corpus. People ex rel. Lee v. Jackson, 285 App.Div. 33 , 135 N.Y. S.2d 345 (hn. 4).
It follows, therefore, that the motion to abate was the only remedy available to the accused. The trial judge should have treated it as calling for the State to show cause why the indictment should not have been dismissed. See Klopfer v. State of North Carolina, 386 U.S. 213 , 87 S.Ct. 988 , 18 L.Ed.2d 1 .
II.
Even were we to accept the so-called majority rule, yet thereunder a hearing on the motion to abate seems to me to be a necessity because of the many exceptions to that implied waiver doctrine. See Waterman, J., in United States v. Lustman, 2 Cir., 258 F.2d 475, 478 .
*59 hi.
A speedy trial is a right under § 13 of our State Constitution. Ex parte State ex rel. Attorney General, 255 Ala. 443 , 52 So.2d 158 . This guaranty is now buttressed by the Fourteenth Amendment. Klopfer v. State of North Carolina, supra, has en-grafted the Sixth Amendment’s “right to a speedy * * * trial” upon State rules of due process.
Here the defendant “no matter how charged with punishment the scroll” is still due to be accused and convicted under, and only under, a constitution.
That appellant was in jail for twenty-four months before trial, I think, requires prima facie that the State explain to the circuit court. An indictment is a returnable paper, not a bill of attainder. It is presumed to have been laid against an innocent man.
Either the Sheriff or the District Attorney (or perhaps both) should exhibit all the prisoners in the county jail at the beginning of every session of the circuit court for criminal causes. This to me is the clear implication of § 144 of our Constitution.
IV.
The second fact, i. e., that defendant was given a court appointed lawyer, raises a more difficult question. Can the assistance of counsel be used to construct a syllogistic waiver of the right to a speedy trial?
Court appointed counsel for indigent defendants work for statutorily limited fees. Code 1940, T. 15, § 318, as amended, sets a minimum of $50.00 and a maximum of $100.00 for trial counsel in capital cases. In other trials § 3 of Act 526, September 16, 1963, limits the fee to $100.00.
These fees are bare “dock fees,” but the traditional “peppercorn” that binds a contractual tie. The legal profession is a calling and a client cannot be lightly declined. Posey & Tompkins v. Mobile County, 50 Ala. 6 ; 7 Am.Jur.2d, Attorneys at Law, § 3.
The secretary of our own State Bar Association has called the attention of the profession to the fact that executive action has been taken to prorate these statutory fees. Alabama State Bar Foundation Bulletin, Vol. V, No. 2, March, 1967. This article concludes:
“ * * * The amount available is still woefully inadequate to provide reasonable compensation for the heavy burden that has been placed on the bar in such representation. We hope there is a growing realization that the burden of providing counsel is on the state rather than on the bar. All indications are that the federal courts will expand the requirement as to entitlement of counsel in criminal proceedings and it would be less than realistic to anticipate that the calls on the Bar in this regard will become less. We all should probably be more vocal on this subj ect so that the public will be aware of this problem. As long as we are content to suffer in silence, others will be content to see us do so. How true it is that the squeaking wheel gets the grease.”
The Kentucky Court of Appeals reluctantly followed the Ninth Circuit case, United States v. Dillon, 346 F.2d 633 . Warner v. Commonwealth, Ky., 400 S.W.2d 209 , states in part:
“In recent times a rapidly progressive broadening of views of the courts as to the stages at which indigents accused of crime (or even convicted of crime) are entitled to representation by counsel has resulted in a great increase in the amount of time and effort required to be devoted by the legal profession to this service. The demands of this service are reaching such proportions that the rendering of the service threatens to become a major function of the practice of law instead of a merely collateral responsibility of the office of attorney * * * ”
To me it is unrealistic to ascribe the inaction of demanding a trial to the defendant’s lawyer. Moreover, if a lawyer must, as he does in Federal court, shower the court im-
*60 mediately on appointment with written motions so as to protect the record, then conversely the failure so to do is left-handedly branded as inadequacy of counsel.
My diatribe on niggardly fees for court appointed counsel is given to show that the work of lawyers in criminal cases ought not to be scattered piecemeal1 2but rather in the interests of judicial economy and efficiency be compressed into a single day in court. We cannot ignore the temptation for overtaxed lawyers 2 to advise indigents to plead guilty.
Arraigning a prisoner under the speediest of trial judges, cannot involve less than an hour’s time away from his office for counsel. An underpaid lawyer is only compensated by his oath.
The economics of practise at the forma pauperis bar 3 has been virtually disregarded by the intricate and onerous red tape laid down by the majority opinion in Anders v. State of California (May 8, 1967), 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 , from which I quote in part:
“ * * * if counsel [appointed to handle a poor prisoner’s appeal] finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous-If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if the state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
“This requirement would not force appointed counsel to brief his case against his client but would' merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.”
Similarly here the majority opinion puts the burden on the court appointed counsel *61 of complying literally with Code 1940, T. 15, § 279. This does not comport with Ex parte State, ex rel. Lawson, 237 Ala. 591 , 188 So. 242 .
Hence, I consider the trial court should have taken testimony to ascertain whether or not the defendant was free from fault in causing the long delay between his commitment and trial.
There may be some valid reason: it should appear of record.
. A 1960 publication of the Mississippi Bar shows minimum fees in trials in that state’s circuit courts of $250.00 for felonies and $750.00 for capital cases. The Huntsville-Madison County (Alabama) Bar in 1960 adopted minimum fees of: $250.00 for capital felonies; $200.00 for murder in the second degree; $150.00 for manslaughter; and $100.00 for other felonies.
Opinion 302 of the EtMes Committee of the ABA alludes to a lawyer’s habitual charging of fees less than those established by a minimum fee schedule possibly affording evidence of unethical conduct.
. See dissent in Anders v. State of California, supra.