Defendant waived jury trial, was convicted by the court of rape upon a daughter and was sentenced to five years’ imprisonment. He appeals.

On July 24, 1967, defendant was indicted for rape upon a daughter. One of the witnesses endorsed on the indictment was Roseanna Estelle Sieckmann, apparently the wife of defendant. Defendant moved to dismiss the indictment upon the ground it was “obtained by adducing privileged testimony to the Grand Jury,” and on September 18,1967, the trial court dismissed the indictment on this basis. The state appealed, and on September 25,1968, the Supreme Court, over the dissent of one justice, dismissed the appeal upon its determination that the order dismissing the indictment, although erroneous, was not appealable. State v. Sieckmann, 251 Or 259, 261, 445 P2d 599 (1968).

On November 21, 1968, defendant was reindicted for the crime of rape upon a daughter. He moved to dismiss, claiming that he was denied the right to a speedy trial, and that reindictment was precluded because the Supreme Court’s order dismissing the appeal did not order resubmission to the grand jury. Thereafter his motions were denied, and on January 14, 1969, he entered his not guilty plea. The trial was held on May 13-14, 1969.

Defendant’s first assignment of error is that the court erred in failing to dismiss the new indictment on the ground that the Supreme Court mandate did not direct resubmission. This assignment is without merit. The 1967 indictment was dismissed pursuant to the mandate and defendant was allowed a judgment for costs. After the determination of that case, a new. and *457 separate case was initiated by tbe district attorney, an indictment was returned, and defendant was prosecuted and convicted. We have found no authority, and none has been cited us, requiring the district attorney to obtain leave of the appellate court to submit a case to the grand jury under the circumstances obtaining here. The district attorney is the public prosecutor, OES 8.650, and is authorized to submit an indictment to the grand jury when he has good reason to believe a crime has been committed which is triable in the county, OES 132.330 (2). Since no claim of res judicata or collateral estoppel was made in the court below, any possible basis for such claim has been waived. Nickum v. Burckhardt, 30 Or 464, 47 P 788, 60 AS 822 (1897); Anno., Res Judicata—Criminal Cases, 9 ALR3d 203, 227 (1966).

Defendant was originally indicted on July 24, 1967, and was not brought to trial until May 13, 1969. His second assignment of error is that he was denied the right to a speedy trial because of the delay created by the state’s unfounded appeal. ①

*458 The Sixth Amendment to the United States Constitution guarantees to an accused the right to a speedy trial and this right is rendered applicable to the states through the Fourteenth Amendment. State v. Evans, 249 Or 314, 432 P2d 175 (1967), cert den 390 US 971, 88 S Ct 1093, 19 L Ed 2d 1182 (1968); Klopfer v. North Carolina, 386 US 213, 87 S Ct 988, 18 L Ed 2d 1 (1966). Delay in bringing a defendant to trial must not be purposeful or oppressive. Pollard v. United States, 352 US 354, 77 S Ct 481, 1 L Ed 2d 393 (1957).

In State v. Evans, supra, the court said:

“The test consistently applied by this court in determining whether the right to a speedy trial has been violated is stated in the following language in State v. Kuhnhausen, 201 Or 478, 513, 266 P2d 698, 272 P2d 225 (1954):

“ ** * * Wholly apart from the statute, the constitutional right of an accused person to a speedy trial contemplates a trial conducted according to fixed rules, regulations, and proceedings at law, free from vexatious, capricious, and oppressive delays. The right is consistent with delays, and, in the final analysis, whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a *459 matter of judicial discretion. * ° *’ ” 249 Or at 318-19.

The Sixth Amendment requires only that there he “orderly expedition” of judicial business, United States v. Ewell, infra. It bars such delay as may be oppressive, arbitrary or vexatious, and seeks to avoid prejudice to the defendant arising from the disappearance of witnesses and the fading of memory. It also seeks to avoid the necessity of having the defendant languish in jail awaiting trial. No claim is made here that defendant was prejudiced in any of these ways, and the record indicates that defendant was released on his own recognizance on August 22, 1967.

In United States v. Ewell, 383 US 116, 86 S Ct 773, 15 L Ed 2d 627 (1966), extensively cited in Evans, a proceeding brought within the period of the statute of limitations was mentioned as being “usually considered the primary guarantee against bringing overly stale criminal charges.” 383 US at 122. Ewell further states:

“* * * [T]his Court has consistently been of the view that ‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’ * * 383 US at 120.

In the present case the delay objected to was occasioned by the length of time required for the appeal. ② Since defendant’s motion to dismiss the original *460 indictment was without merit, State v. Sieckmann, 251 Or at 261, and the resulting erroneous order of dismissal was the cause of the state’s appeal, the defendant must share responsibility for the delay. Delay caused by the defense is not undue delay which violates the right to speedy trial. State v. Robinson, 3 Or App 200, 211-13, 473 P2d 152 (1970). Since it appears in this case that the delay was neither vexatious, capricious, oppressive nor prejudicial to defendant, we find no merit in this assignment of error.

The complaining witness testified that she reported her father’s molestation to Mrs. Binderknecht, a Multnomah County Juvenile Court counselor, on June 12,1967, her second visit with Mrs. Binderknecht. Mrs. Binderknecht was permitted to testify, over defendant’s hearsay objection, that complainant had, in fact, stated on that occasion that her father had attempted to molest her on the night before, and that he had molested her on prior occasions. Defendant for his third assignment of error claims that this testimony was inadmissible hearsay and that the trial court could not divorce itself from the prejudicial effect thereof.

This was a trial to the court. If the record were silent, we would presume that the trial judge disregarded any questionable evidence. However, the court expressly recognized the hearsay feature and *461 stated that it was “not going to consider Mrs. Rinderknecht’s testimony on the question of the truth of whether or not this occurred.” There was no error.

Affirmed.