served upon the prisoner, or that, owing to the sparseness of the population, or the very enormity of the offence, an impartial jury of the county could not be made up at any one term, or that the judge erroneously exercised his discretion in granting a continuance to the State for insufficient cause, or that in the course of the trial he committed some error of law against the defendant, for which he would grant a new trial, or the conviction be reversed on appeal, or that he would be compelled on account of the illness of one of the jury, or because they would not agree, at the close of the term, to discharge them, in any such case it might be truly said that the pizisoner had not been brought to trial at that term. Even upon new trial, reversal for error, or mistrial, in those cases where, according to the law, as at present understood, the judge would be authorized to discharge the jury without the consent of the prisoner, he could not be said, in the sense of being put in jeopardy, to have been brought to trial.
Until some perfect scheme of law can be devised, these and other causes of delay, that can readily be supposed, attending its practical administration, can never be effectually guarded against. We incline 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 where the delay of the State in bringing him to trial is for want of evidence; because that section contemplates that where the application is made, and the grounds of it are well founded, the State may have a delay of one term more, if the judge be satisfied that there is material evidence on the part of the State, which she has been unable to procure, but may procure by another term.
The judicial officers furnished by the State for the trial of all offenders, are presumed to be honest and capable. We have seen what care the State by her legislation has taken to furnish the opportunity for a speedy trial. We cannot shut our eyes to the fact, known to all who are acquainted with the administration of justice, that where the crime is of magnitude, delays diminish the chances of conviction, and with that bope are usually sought or acquiesced in by the accused. And for that reason, we think the
