#### *Green v. The Commonwealth.

December, 1842.

Criminal Law—Right to Speedy Trial—Delay for Five Terms.-†-—A prisoner charged with felony being in-*444dieted at the first term of the circuit court after his examination, the case is continued at that term for the want of time to try it. At the second term, the case is continued on the motion of the prisoner, upon the ground of the absence of a material witness for him. At each of the three succeeding terms, the case is again continued for the want of time to try it. Held, that upon the expiration of the lastof thefive terms, the prisoner became entitled, under the statute *1*Rev. Code, ch. 169, § 28, to be forever discharged of the crime imputed to him.

In the circuit superior court for the county of Henrico and city of Richmond, 9-t October term 1840, twenty-four indictments were found against Benjamin W. Green, for several felonies, for which he had been duly examined before the court of hustings for the city of Richmond, and, on the 15th of June 1840, remanded by that court for trial in the said circuit court. The indictments were found at the term o'f the circuit court next following the examination. The prisoner was arraigned at the same term, on one of the indictments; whereupon various motions and points of law were made in the cause, the discussion of -which occupied the time of the court till the 12th of November 1840, the last day of the term, when the attorney for the commonwealth and the prisoner stated that they were ready to go to trial; but it being then six o’clock in the evening, the court, for want of time to proceed with the trial, ordered that the cause be continued till the next term.

At April term 1841, all of the said prosecutions were again continued, on the motion of the prisoner, and on his oath that B. W. Mallory was a material witness for him, and was then absent.

At October term 1841, Green was tried upon the indictment on which he had been former^ arraigned. The trial lasted ■ from the 30th of October to the 12th *of November, when the jury returned into court with a verdict of not guilty, and the prisoner was acquitted of the felony charged in that indictment, but continued in custody to answer the other indictments. On the same 12th of November, the last day of that term, an order was entered containing all criminal causes which had not been already tried or continued.

On the last day of the ensuing term, to wit, on the 4th of May 1842, Green appeared in court, in discharge of his recognizance entered into before the general court,* to answer the commonwealth of the felonies laid to his charge in the 23 remaining indictments ; and for reasons appearing to the court, he was permitted to give bail for his appearance on the 6th of Julyt ensuing, to answer the said indictments, and thereupon entered into a recognizance accordingly.

On the 20th of July† 1842, Green appeared in discharge of his recognizance last mentioned ; and on the motion of the attorney for the commonwealth, who stated as his opinion that there was not then sufficient time at that term for the trial of said Green upon an3' one of the indictments against him, it was ordered that the said trials be postponed until the next term. Whereupon *Green entered into anew recognizance to appear accordingly.

On -the last day of the following term, to wit, the 12th of November 1842, Green appeared according to the condition of his recognizance entered into on the20th of July; and the court, being of opinion that there was not then sufficient time at that term to try him upon any one of the indictments, permitted him to give bail for his appearance at the next term: whereupon he entered into a recognizance accordingly, with sureties, one of whom was Dabney M. Miller.

And now Green presented a petition to the general court, stating that he had been arrested and was detained in custody by Miller, one of his bail in the recognizance last aforesaid, under pretence of authority derived therefrom: setting forth the proceedings had against him in the circuit court upon the 'several indictments aforesaid: insisting, that, as he had not been tried within the time prescribed by the statute, 1 Rev. Code, ch. 169, *\*28, p. *607,*
      *‡*
      **he *445was entitled, by virtue of that statute, to be forever discharged of all the crimes imputed to him by the several indictments pending against him in the circuit court; that the said court had therefore no power to require from him, at October term 1842, a recognizance for his further appearance to answer those indictments, and such recognizance could not confer upon the bail therein any legal authority to take or detain him in custody: and praying *a writ of habeas corpus to bring him before the court, to the end that he might be discharged from the custody in which he was illegally held by Miller.

The general court awarded the habeas corpus; to which Miller made return, that he had taken Green into his custody, and now detained him therein, by virtue of his authority as one of Green’s bail in the recognizance entered into before the circuit court on the 12th of November 1842, and for no other cause.

The cause was argued here by Taylor and Lyons for the petitioner, and the attorne}7- general for the commonwealth.

Criminal Law—Right to Speedy Trial—Delay for Five Terms.—The principal case is cited in Com. v. Adcock, 8 Gratt. 686, 693; Archer v. Com., 10 Gratt. 634 *et seq.*

See also, State v. Newsom, 13 W. Va. 869. See *444monographic *note*on “Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.

In McCann v. Com., 14 Gratt. 577, the court said: “Upon the supposition that the law intends a discharge to flow from a continuance beyond the third term, a prisoner, if still held in custody after the expiration of such term, would be illegally detained, and would be discharged upon a *habeas corpus. Green's Case,*1 *Bob. B.*731.”

Right of Bail to Custody of His Principal.—The principal case Is cited in Levy v. Arnsthall, 10 Gratt. 645.

He was bailed by the general court at its December term 1841. See Green v. Commonwealtb, 11 Leigli 677. —Note in Original Edition.

The court held in July 1842 was held in pursuance of an act passed the 26th of March 18£2, (Acts of 1841-2, ch: 69, § 2, p 43.) which enacts, that the judge of the circuit superior court of law and chancery for the twenty-first circuit on the common law side thereof, “at the end of any term of the said court now appointed by law to be holden” for the trial of criminal causes, “when the same may be necessary, may and he is hereby authorized and required to adjourn such court to such day in the recess as to him may seem most convenient; and agreeably to such adjournment, an intermediate term, not exceeding fifteen judicial days, shall be held by the said judge for the trial of all criminal causes which were depending and could lawfully have been tried, but had not been tried, at the term from which such intermediate term had adjourned.”—Note in Original Edition.

“ Every person charged with treason or felony, who shall not be indicted before or at the second term after he shall have been committed, unless the attendance of the witnesses against him appears to have been prevented by himself, shall be discharged from his imprisonment, if he be detained for that cause only; and if he be not tried at or before the third term after his examination before the justices, he shall be forever discharged of the crime, unless *445such failure proceed from any continuance granted on the motion of the prisoner, or from the inability of the jury to agree on their verdict.”—Note in Original Edition. .

LOMAX, J.,

delivered the opinion of the court.'—'The court is of opinion that by the terms of the act of assembly, 1 Rev. Code, cb. 169, § 28, the prisoner not having been tried at or before the third term after his examination, and this case not falling within the exception stated in the same law, he was entitled to be forever discharged of the crimes with which he stood charged. His right to this discharge, upon the adjournment of the circuit court at its last term, became complete and was consummated. That court, however, upon its adjournment, ceased to have a capacity to pronounce by its order the discharge to which the prisoner was entitled by the law. As the right of the prisoner to his discharge from the crimes imputed to him was given him by law, under the circumstances provided for, as a paramount right controlling and terminating all the proceedings by which he had been held in custody before the end of the term of the circuit court, the majority of this court are of opinion that the prisoner is entitled, upon this proceeding, to be now discharged from the custody of his bail, which ought no longer to be allowed after the law has forever discharged him of *the crimes with which he was charged in the circuit court.

From the foregoing opinion, LOMAX and LLIGH, J., dissented.

Petitioner discharged from the custody of his bail.