State v. Phil , 1 Stew. 31 ( 1827 )

JUDGE GAYLE

delivered the opinion of the Court.

The questions presented for the consideration of this Court are: Was the first trial a bar to the second indictment, and should the prisoner have been discharged at the second stated term of the Court, the trial not having been delayed at his instance.

As to the first question, the indictment was held not to contain such a charge as would authorize any punishment to be inflicted. It was adjudged ill on the application and for the benefit of the prisoner, and he cannot now say that the judgement was arrested contrary to law. The second indictment and prosecution infringes no legal or constitutional right.

As to the second question, the 6th section of the act of 1807, ^a provides “that if any person shall be committed for treason or felony, and shall not be indicted and tried at or before the next stated term of the Court where the offence is properly cognizable, it shall be lawful for the said Court, upon the last day of the term, to set at liberty such prisoner upon bail, unless, &c.; and if such prisoner shall not be indicted at the second stated term after his or her commitment, unless the delay happen on the application or with the assent of the defendant, he or she shall be discharged from imprisonment.” The Legislature have fixed the limit of imprisonment when there is no delay of trial at the instance of the prisoner, and in language unambiguous and imperative, have declared that unless the delay happen on application or with the assent of the defendant, he shall be discharged from imprisonment. There is no room for construction, and the Court are not at liberty to derive any aid from considering what might be the views of the Legislature. We are therefore of opinion, that the prisoner Phil ought to have been discharged, that the judgement of the Circuit Court be reversed for this error, and that the prisoner be discharged.

Judge Crenshaw not sitting.

a Laws Ala. 602.