Sullivan, Foley and Leonard. The opinion of the court was delivered by Sullivan, S.j.a.d.
The State appeals from an order of the County Court dismissing an indictment. The order for dismissal was entered because of the refusal of the assistant prosecutor to commence the trial on the indictment after the case had been reached for trial on the calendar of ready cases.
In April of 1967 defendant was indicted on a charge of causing death by motor vehicle, the incident having allegedly occurred in December 1965. A bill of particulars was served upon the prosecutor which was not fully answered until January 2, 1968. In the meantime, the case was carried on the trial list from September 1967.
On January 3, 1968 a new trial list for criminal cases was promulgated. The instant case was No. 14 on the list and was marked ready. Towards the end of the month the case appeared on the daily call as No. 6 on the list and was again
marked ready for trial. Thereafter, the case was carried ready from day to day until finally it was reached for trial on Thursday, February 1, 1968.
On January 31, 1968 the assistant prosecutor telephoned the attorney for defendant and, after ascertaining that defendant was ready to go to trial, stated that he would call counsel by 4:00 P.M. of that day if he anticipated any difficulty in commencing trial the following morning. No such call was received.
On February 1, when the case was called, the assistant prosecutor stated that the State was not ready to move the indictment because it intended to call some 18 witnesses, members of several police departments, and he had been unable to have the subpoenas issued for these witnesses.
At this point counsel for defendant moved to dismiss the indictment on the ground that defendant was prepared to proceed and the State had been on notice for some time that the case would reach trial shortly and had ample opportunity to prepare for trial.
The trial court pointed out that it was then Thursday afternoon and that on Friday the court had a full calendar of pleas, sentences and motions, and that the most that could be accomplished then was the selection of a jury and possibly the openings, and that the trial itself would not actually begin until the following Monday.
The assistant prosecutor stated that he could not represent that the subpoenas would be served in time for a trial on the following Monday and he felt the State would be prejudiced if a jury was empaneled and the State did not have its witnesses present.
When the court indicated that it would dismiss the indictment unless the State went to trial, the assistant prosecutor called the court's attention to R.R. 3:11-3(b), which provides:
"At any time after 6 months following the return of an indictment or the filing of an accusation, the Assignment Judge may direct that the trial of the ...