¶1(concurring).
¶2In my opinion, it is apparent there is a grave question on the face of the record as to whether defendant has not been deprived of his right to a speedy trial, Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26. The complaint has been pending against him for over eight years despite his efforts to get the state to act one way or the other on it. State v. Haverstick (Mo.Sup.), 326 S.W.2d 92, holds the speedy trial provisions apply to a defendant in the penitentiary and it is common knowledge that prosecutors have for a long time successfully used habeas corpus to bring penitentiary inmates into magistrate court to answer complaints. For example, see State v. Caffey (Mo.Sup.), 438 S.W.2d 167, 169. So the state could have proceeded long ago had it so desired.
¶3I concur in the disposition made of the case in the principal opinion, because it appears relator has finally been given the preliminary he seeks and because if relator is bound over and an information filed, I take the language in the principal opinion that the question of his right to a speedy trial does not arise until an information is filed against him to mean that then, in the trial held on the information, defendant can raise and be heard on his claim that delay of over eight years between complaint and trial has deprived him of his right to a speedy trial. That question is not settled in the present proceeding, in which defendant has received one of the two alternatives for which he sought mandamus — to-wit, a preliminary hearing. No evidence is before us at this time as to the extent of the prejudice to defendant from the eight-year delay, not only in the preparation of his defense, but in the way of prejudice outside the courtroom in the penitentiary in respect to difference in his treatment with respect to parole possibilities, work programs, security, rehabilitation, etc., as compared to inmates who are not under detainers (assuming that despite such a long delay, evidence of specific prejudice is required to establish violation of the speedy trial provisions). The place to go into all this is in the trial court by bringing the matter to the attention of the trial court prior to trial by a proper motion or plea to be discharged.