Page:Stewart v. State.pdf/15

Rh spirit of the law is, that for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in the attitude of demanding a trial, or at least of resisting postponements.

The interchange of judges, which caused the first delay, was made under a general law for the dispatch of business, and for the convenience of suitors, in cases where either judge in his own circuit was disqualified. There is nothing in the record from which it might be inferred that such interchange was made with the design of depriving the prisoner of a trial at that term, and if there was, it would then remain to be inquired whether such an abuse of their high trusts which would subject those judges to impeachment, could so operate in favor of the accused as to defeat the ends of public justice. The second delay complained of, occasioned by the quashal of the venire upon the motion of the prisoner, was an error of the court in his favor, because the alleged defect in the venire was amendable, and not tending to his prejudice. The term of the court being limited by law to that week, there was not time for the prisoner to have service of a list of the jurors that might be returned upon another venire at that term. Besides, the prisoner, so far from demanding a trial, was at the same term urging his application for a continuance.

According to any view we take of the statute, we think the prisoner fails to show that he was entitled to be discharged for want of prosecution.

2. We find no error in the decision of the court overruling the application for continuance, made by the prisoner at February term, 1851. Although the granting or refusing continuance is matter of discretion in the circuit court, which ought rarely to be interfered with by the appellate court, yet it is a sound legal discretion which may be abused, and because, according to the practice of this court, in error, if in the refusal of the application, is one which may be corrected in the appellate court, we cannot refuse to examine its sufficiency. It is true that a party may have more than one continuance for the absence of