Page:Stewart v. State.pdf/2

Rh construction of section 181; but is inclined to the opinion that the intention of the law is manifested by section 182, to be that the prisoner will be entitled to his discharge, only, where the delay of the State in bringing him to trial, is for want of evidence.

The spirit of the law would seem to be, that, for the 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 postponement.

In this case, there was a failure to bring the prisoner to trial, at one term of the court, in consequence of an interchange of judges, under existing law, which brought to the court, where the prosecution was pending, a judge who was incompetent to sit in the case. At a subsequent term, the venire, under which the sheriff summoned the petit jurors to try the case, being defective, but amendable, was quashed on the motion of the prisoner, he urging, but the court refusing, a postponement of the cause; and there not being time, before the lapse of the term, to summon a new list, and furnish him with a copy thereof, the requisite number of hours before the trial, the court continued the cause: That the prisoner, under the circumstances, was not entitled to a discharge for a want of prosecution.

Though, in the discretion of the court, a party may have more than one continuance for the absence of different witnesses, or for the absence of the same witnesses, if occasioned by different causes, so as to be within the spirit of the law, yet, in this case, the prisoner having obtained one continuance on account of the absence of his witnesses, and applying for another because of the absence of the same witnesses, assigning, as a cause for their absence, a change in the time of holding the court by act of assembly of which they were alleged not to be advised, but it appearing that the law making the change had been published in the newspapers, &c., and that the facts which the prisoner expected to prove by the absent witnesses, were substantially proven by other witnesses on the trial: That the refusal of the court below to grant the continuance, was no ground of error.

Where the prisoner is furnished with an imperfect list of the jurors, and the court refuses, on his motion, to cause him to be furnished with a correct list, the requisite time before the trial, and forces him into trial without such list, and he excepts to the decision of the court, and rests upon the exception, without moving for a new trial, which is addressed to the sound discretion of the court, this court is bound to presume that he was prejudiced by the denial of a legal right, and for this cause will reverse the judgment.

Upon challenging a juror for principal cause, the party challenging has the right to elect whether the competency of the juror shall be tried by the court or by triers: if by the court, then the trial must be upon the testimony of the juror only, on his voir dire; if by triers, then by other evidence, to the exclusion of the oath of the juror challenged.

When it appears that a juror has formed or expressed an opinion as to any material fact in issue involving the guilt or innocence of the prisoner, the