Page:Stewart v. State.pdf/12

Rh two regular terms of the circuit court in each year for every county, the statute makes it obligatory upon the judge of the circuit court failing to hold any regular term, to hold such court on the 8th Monday thereafter, or at such other time as the court shall appoint, in case that will conflict with any other term of his circuit. (Digest, title Courts—Circuit, sec. 5.) So he may hold special adjourned sessions in continuation of the regular term. (Ib., title Courts of Record, sec. 20.) So he may, in his discretion for the trial of persons confined in jail, and upon their demand it would doubtless be his duty, to hold a special term at any time, by pursuing the directions given in the statute, though, judging from experience, the practical utility of such irregular called terms may well be doubted.

What then, upon the question here presented, is the fair construction of the statute relied on by the plaintiff in error? It is conceded in the argument for him, that the delay at the first term at which the indictment was found, was caused by the granting of his application for a change of venue to Hot Spring, and that the failure of the judge to hold the March term, 1849, of that court, is within one of the exceptions of the statute; and at the March term, 1850, the case was continued on the prisoner's application. But it is contended that, at the September term, 1849, the State failed to furnish a competent judge by reason of the voluntary interchange of the judges, and that, at the September term, 1850, the want of time to try the prisoner resulted from the failure on the part of the officers of the State to have legally summoned a venire for the trial of the cause. Supposing these grounds to be well taken, there were then two terms of the court at which the prisoner was not brought to trial, and not coming within any of the exceptions of the statute.

But, in our opinion, from the phraseology of section 179, the unavoidable construction of it is, that, in order to entitle the accused to be discharged for such cause, there must be, on the part of the State, a failure of three terms to bring him to trial, that is to say, at the end of the second term which shall be held after the finding of the indictment. Under a previous section, (170,