BAKER, JUDGE. (after stating the facts as above).

After carefully considering the proof in this case, and reading and analyzing all the authorities cited on both sides, and such additional authorities as we were able to find after an exhaustive and painstaking search, we find at least four questions are presented herein: First. Is relator entitled to a writ of mandamus when he has a plain and adequate remedy in the ordinary course of law? Second. What law of procedure shall apply in the disposition of the cases against him? Shall the law of Arkansas, as adopted by Congress, and put in force in the Indian Territory at the time of the finding of the indictments against relator, or shall the laws of the Territory of Oklahoma, as extended over the Indian Territory by an act of Congress known as the "Enabling Act," apply? Third. What, under the law applicable in this case, is meant by a speedy public trial? Fourth. Has the relator been denied the benefit of a speedy public trial by an impartial jury, as guaranteed to him by the provisions of the Constitution, and the statutes in force in the jurisdiction where his cases are pending?

Considering said propositions in the above order, we have first: "Is the relator entitled to a writ of mandamus when he has a plain and adequate remedy in the ordinary course of the law?" Section 4885, Wilson's Rev. Ann. St. Okla. 1903, referring to the writ of mandamus, provides: "Sec. 4885. This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law." This court thinks that under the facts and circumstances of this case, the relator has a plain and adequate remedy in the ordinary course of the law: First. By a decision upon his motion pending in the Ninth judicial district of this state, for the county of Okmulgee, wherein he asks to be discharged by reason of not having received a speedy trial, as provided by law. It is true that the relator's petition alleges, and one of the learned counsel, in his affidavit in support of the petition, swears, that the respondent, as the judge of said district court for said county, failed and refused to decide said motion. This the respondent says, under his oath, is not true; on the contrary, that the motion of relator, filed May 5, 1908, demanding a trial was never argued in said court; that said court never refused to enter an order of record, either discharging the relator and dismissing the said cases against him, or overruling said motion and setting said cases for trial, and that said motion is wholly undetermined. The burden of proof being on the relator, weighing the evidence in the usual way, and giving the respondent the benefit of the legal presumption that every public officer and every court is presumed to do its duty under the law, we find that said motion is therefore still pending in said court. In Patterson v. State, 49 N.J. Law, 326, 8 A. 305, the court holds:

"A defendant should not be discharged on habeas corpus because he has not been tried the second term after issue joined, under the provisions of section 65 of the act concerning criminal proceedings, unless it appears, first, that he has applied to the trial court and has been refused his discharge; and, secondly, that such refusal was so arbitrary and groundless as to amount to a clear abuse of discretion."

Secondly. The relator has another plain and adequate remedy at law, in this: that in the event said motion demanding his discharge in said court is overruled, and he is convicted in said court, and he desires to do so, he has a right to appeal from said court to this court. See Territory of Oklahoma, on the relation of H.L. Miller v. Hewitt et al., 5 Okla. 167; and Wood, Respondent, v. Strother, Auditor, et al., 76 Cal. 545, 18 P. 766, 9 Am. St. Rep. 249; Ex parte Campbell et al., 130 Ala. 171, 30 So. 385; Stewart v. Territory of Oklahoma ex rel., 4 Okla. 707, 46 P. 487; Nettie Collet v. Wm. M. Allison, 1 Okla. 42, 25 P. 516.

Finding, therefore, that said relator has a plain and adequate remedy at law, he is not entitled to a writ of mandamus at this time; but cases might arise where, through an abuse of the discretion of the trial judge, it would be otherwise. This court might well have rested from its labors in connection with this case by denying the writ, for the reasons already stated; but, inasmuch as this court has, as heretofore announced, determined to decide every material proposition fairly made in the record presented to it, and realizing the great importance of the questions involved, and feeling the interests of justice and the necessity of settling all questions of procedure in the state as speedily as possible, we will, therefore, decide all the other essential propositions made by the record and proof herein.

Coming now to the second proposition: "What law of procedure shall be applied in the determination of the rights of the relator?" We think the law in force in the Indian Territory from the time chapter 46 of Mansfield's Digest of the Laws of the State of Arkansas was adopted by Act Cong. May 2, 1890, c. 182, 26 Stat. 81, and put in force in the Indian Territory, and continuing until Oklahoma was admitted into the Union, shall control. Within the meaning of the Constitution of the United States, any law is ex post facto which is enacted after the commission of the offense, and which, in relation to it or its consequences, in any way affects the material situation of the accused to his prejudice or disadvantage. This doctrine is most ably sustained in a very learned and exhaustive opinion written by one of the world's ablest jurists, Mr. Justice Miller, of the Supreme Court of the United States, and decided by that court in the case of Kring v. Missouri, 107 U.S. 221, 2 Sup. Ct. 443, 27 L.Ed. 506, a capital case, Kring, having been indicted and convicted of murder in the first degree. The judgment was affirmed by the Supreme Court of Missouri, a previous sentence, however, having been pronounced against him on his plea of guilty of murder in the second degree, and subjecting him to imprisonment for 25 years, which sentence on his plea had been appealed, reversed, and set aside by said court. By the law of Missouri, in force when the homicide was committed, this sentence was, in effect, an acquittal of the crime of murder in a higher degree. Before his plea of guilty was entered, the law was changed so that by force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. Held that, as to this case, the new law was ex post facto, within the meaning of section 10, art. 1, of the Constitution of the United States, and that he could not be again tried for murder in the first degree. This decision is entirely in accordance with our conception of justice and fairness. The accused should be tried and dealt with under the law as it existed at the time of the commission of the crime of which he stands charged. Any other doctrine would be fraught with many hardships and uncertainties, and would be repugnant to the well-established policy of the law.

It was, by counsel in the Kring Case, urged that as to the rights of persons charged with crime under subsequent legislation affecting those rights, even though the changes in the law were radically to the disadvantage of the accused, it is not ex post facto, because it was a change, not in crimes, but in criminal procedure. This view the Supreme Court of the United States refused to accept, but proceeded to define the much vexed question as to what is meant by "procedure" as a law term; and said court wisely adopted the definition laid down by the distinguished writer on criminal law, Joel Prentiss Bishop, in his valuable work on Criminal Procedure. Bishop, in the first chapter of his work, undertakes to define what is meant by "procedure." He says:

"Sec. 2. The term 'procedure' is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, pleading, evidence, and practice."

And in defining practice in this sense, he says:

"The word means those legal rules which direct the course of proceeding to bring parties into the court, and the course of court after they are brought in."

Evidence:

"Signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted."

We think the court in the Kring v. Missouri Case lays down a correct and clear idea of what is intended by the word "procedure" as applied to a criminal case. It is, therefore, obvious that a law which is one of procedure may be decidedly obnoxious as an ex post facto; for any law which would alter the legal rules of evidence, or receive less, or different, testimony than the law requires at the time of the commission of the offense, or would apply different rules for the conduct of the trial of the case, is an ex post facto law. Many instances might be cited where a change of the law would not, in fact, change the crime or its punishment, but would still, in the application of the changed condition of the procedure, materially and prejudicially affect the rights of the accused. No ex post facto law will be enforced against the accused which would in any way be prejudicial to his rights.

We think that Congress, in passing the enabling act, intended to settle the question as to the lay applicable in cases then pending in the Indian Territory. Section 20 of the enabling act provides: (Act March 4, 1907, c. 2911, 34 Stat. 1287)

"All criminal cases pending in the United States courts in the Indian Territory not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to final determination in the state courts of Oklahoma under the laws now in force in that territory."

This court, therefore, holds that the law in force in the Indian Territory at the time the indictments were returned in the cases against the relator shall govern the disposition of his cases.

This brings us to the third proposition: "What, under the law applicable in this case, is meant by 'speedy trial'?" The provisions of the sixth amendment to the Constitution of the United States, guaranteeing the accused a speedy trial, are applicable to the territories, including the Indian Territory. This is well settled in the cases of In re Dykes et al., 13 Okla. 339, 74 P. 506; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Callan v. ilson, 127 U.S. 550, 8 Sup. Ct. 1301, 32 L.Ed. 223; Rasmussen v. United States, v97 U.S. 522, 25 Sup. Ct. 514, 49 L.Ed. 862; and Stewart v. State, 13 Ark. 720. Neither the Constitution of the United States, nor any act of Congress, fixes the time within which a person accused of crime and imprisoned shall be tried; but the act of Congress of May 2, 1890, c. 182, 26 Stat. p. 87, § 11, adopting and putting in force in the Indian Territory, chapter 46 of the General Laws of the State of Arkansas, entitled "Criminal Procedure," offers a definition of "speedy trial," or rather fixes the limitations within which a trial might be had without violating the Constitutional provisions. The part of said chapter 46 applicable to the case at bar is the provisions of sections 2192 and 2193 of Mansfield's Digest of the General Laws of the State of Arkansas:

"Sec. 2192. If any person indicted for any offense and held to bail shall not be brought to trial before the end of the third term of the court in which such indictment is pending, it shall be held after a finding of such indictment and holding to bail thereon, he shall be discharged so far as relates to such offense, unless the delay happens on his application.

"Sec. 2193. Nothing in the two preceding sections shall be so construed as to discharge any person who shall have been indicted for any criminal offense on account of the failure of the judge to hold any term of court, or for the want of time to try such person at any term of the court."

Whenever Congress in legislating for the territories (including Indian Territory) borrowed, from the statutes of a state, provisions which had received in such state a known, defined, and settled construction before they were enacted by Congress, that construction must be deemed to have been adopted by the courts over which such legislation extended; and the provisions of such laws should be construed as they were understood at the time in the state from which the same were borrowed. American English Enc. of Law (2d Ed.) vol. 26, p. 702, and cases cited. We find that sections 2192 and 2193, of Mansfield's Digest, just quoted, had received in the state of Arkansas a definite and settled construction long before said statutes were adopted by the act of Congress putting them in force in the Indian Territory. In the case of Stewart v. State, 13 Ark. 720, the court, after very carefully considering the case, held that, notwithstanding there had been held three regular terms of court after the finding of the indictment against Stewart, at which there had been ample time in which to try the case, the accused, in order to avail himself of the rights conferred by that statute, was required to place himself upon record in the court in which the indictment was pending in the attitude of demanding a trial, or, at least, to have opposed postponement. Thos. A. Watts, Plaintiff in Error v. State of Georgia, 26 Ga. 231; Dillard v. State, 65 Ark. 404, 46 S.W. 533; State of Iowa v. Louis Enke, 85 Iowa 35, 51 N.W. 1146; Patterson v. State, 49 N.J. Law, 327, 8 A. 305. The record in this case does not show that the relator opposed the continuance of his cases during the two terms of the federal court, of which he complains, and apparently made no effort whatever to have his cases brought to trial in said court, nor does the record disclose that he objected to a continuance of his cases at the first two terms of the state court in which the indictments against him were then pending. If, in fact, the first two terms of the state court were, in law, such terms as the relator could have insisted upon being tried at on said indictments, it is well settled that the accused will not be heard to complain that he was not tried at a term of court when, for good reasons, no jury was summoned to try cases during said term; or where a jury had been summoned, and for good cause, such as a pestilence, or the existence of an epidemic of contagious disease, the jury summoned for that term was discharged. People v. Benc, 130 Cal. 159, 62 P. 404; People v. John Vesalo, 120 Cal. 168, 52 P. 305; State v. Huting, 21 Mo. 464. The proof in this case shows that the first, or December, 1907, term of the district court of the Ninth judicial district of Oklahoma, for Okmulgee, in which the indictments against relator are pending, was called for the purpose only of organizing said court and putting the "machinery in running order," and, therefore, no jury was summoned; that at the January, 1908, term, a jury was called for said court, and relator's cases set down for trial on the 10th day of February, 1908; that neither the relator nor his attorneys were present at said term, and had made no preparation whatever for the trial of his cases, or either of them, at said term; and that neither relator nor his attorneys made any objection to the court discharging the jury on account of the smallpox epidemic, or for any other reason. Relator, therefore, waived his right to be tried at said term. (See section 995 and succeeding sections, Bishop's New Criminal Law, and cases there cited.) The record shows that on the 5th day of May, 1908, during the April term of said court, relator, by his attorneys, filed in said court the following motion:

"Now comes defendant by his attorneys, Stanford Cochran, and formally demands that he be put upon his trial in the above-entitled cause, or that he be discharged from the indictment herein, by reason of his being denied his right of a speedy trial."

The same motion was filed in each of the cases pending in said court against relator. As we said before, the proof herein adduced does not show, nor does the record of said court show, that said motions, or either of them, have ever been passed upon by said court. But, for the purpose of settling these questions, so far as this court is concerned, we will treat the record as if said motions had, in fact, been overruled.

This brings us to the fourth and last proposition: "Has the relator had the benefit of a speedy public trial, as guaranteed to him by the provisions of the Constitution and statutes in force in the jurisdiction where his cases are pending?" The relator bases his claim for a peremptory writ of mandamus from this court compelling respondent, as district judge of the Ninth judicial district of this state, to make an order discharging him, upon the ground that he has been deprived, through the fault of the state, of his constitutional right to a speedy trial. We have carefully read all the cases cited by the relator in support of his contentions herein, and we find from such examination that the cases first hereinafter cited fully authorize, in a proper case, the writ of mandamus to enforce the dismissal of a criminal action where the right to a speedy trial has been denied, Ex parte Cole, 28 Ala. 50; Palmer v. Jackson County, 90 Mich. 1, 50 N.W. 1086; State v. Johnson, Judge, 105 Wis. 90, 80 N.W. 1104; Schwartz v. Barry, Judge, 90 Mich. 207, 51 N.W. 279; Ex parte Scott, 19 Ohio St. 581; State v. Burgoyne, 7 Ohio St. 153; Gordon v. Longest, 16 Pet. 97, 10 L.Ed. 900; Watson v. Judge, 40 Mich. 729.

The relator, in support of his contention that he should be discharged from said indictments, cites State v. Sims, 1 Overt. (Tenn.) 253. The defendant in this case was committed for stealing goods out of Potter's store. There was no Attorney General, nor any person to prosecute for the state. Campbell, J., requested the prosecutor to be called. He was, and asked if he had anything to say as to why the court should not discharge the defendant, as his counsel insisted that he had a right to claim his discharge.

"Overton, J. The ninth section of the Bill of Rights secures to the citizen the right to a speedy public trial, and to demand the cause of the accusation against him. The state has omitted to provide an Attorney General since the resignation of the former one. Upon this man's demanding the cause of accusation against him, and that he shall have a trial, and there being no reason shown why he should not, he ought to be discharged. The omission of the state to provide a public prosecutor cannot render the provision of the Constitution inefficient. This circumstance of itself furnishes no ground to keep the prisoner six months longer in confinement."

"Campbell, J. and Powel, J., gave no decisive opinion on this ground, but the prisoner was discharged."

This case was tried over a hundred years ago, and is the first case we have found where the right of a speedy trial in a criminal case found judicial determination in this country. The above case in no wise supports the contention of relator in this case. In the case at bar the state provided a prosecutor, who, according to his affidavit filed in this case, was always ready, and is now ready to try the cases of the relator, but was unable to do so for the want of time.

Relator cites the case of Newlin v. People, 221 Ill. 166, 77 N.E. 529, an Illinois case. The state of Illinois has a statute requiring that all criminal cases shall be tried within four months of the date of the commitment; failing to do so, confers an absolute right on the person charged with the crime and imprisoned to be set at liberty unless tried within the time limited. It will be observed that under the Illinois statute the person charged with the crime must be imprisoned before he has a right to a discharge after the four months' period has expired. The court in said case holds that where a person charged with crime and imprisoned applies for his discharge, it is not sufficient to say that it was inconvenient or impossible for the judges of the court to hold the term of court at the time fixed by statute, within the four months. It will be observed, also, that under chapter 37, § 57, of the Statutes of Illinois (Hurd's Rev. St. 1908), different judges may hold court for each other, and perform each other's duties where they find it necessary or convenient; and that the right secured to the accused by said statute cannot be defeated arbitrarily by an order made without his consent, dispensing with the services of a jury at a term commencing within four months of the date of the commitment. Thus we find from an examination of the facts in this case that relator's contention is not sustained.

The relator cites the case of People v. Morino, 85 Cal. 515, 24 P. 892. This case construes section 13 of article 1 of the Constitution of California, which guarantees a speedy trial to every person charged with crime. The California Revised Code (section 1382) also provides that unless good cause is shown the court must order the prosecution to be dismissed. If the defendant, whose trial has not been postponed upon his own application, is not brought to trial within 60 days after the filing of the indictment or information, this case holds, "that a person against whom information was filed on August 7th, and who was arraigned and pleaded not guilty five days later, was entitled to a dismissal in the case for want of prosecution on motion made the following March, when it appeared he had made no application for a continuance, and no cause for the delay was shown by the prosecution." In this case there was no cause whatever for the delay shown.

People v. Buckley, 116 Cal. 146, 47 P. 1009, is also cited and relied upon. In this case information was filed December 27th; defendant arraigned January 4th; demurred on the 11th; demurrer argued 18th, and overruled the 25th. Defendant then pleaded not guilty. Case was called for trial February 12th; defendant obtained a continuance of one day, but the trial did not occur until March 18th. Held, that defendant was entitled to dismissal under section 1382, providing that the prosecution shall be dismissed unless good cause to the contrary be shown. This court also held that the mere statement of the judge, on denying the motion to dismiss, that during the time of delay the court had been wholly occupied with other cases, does not show good cause for the delay. Nor was it good cause that a material witness for the state was absent, unless diligence was shown to procure his attendance.

State v. Kuhn, 154 Ind. 450, 57 N.E. 106, is also relied on by relator. This was a construction of section 1852, Burns' Ann. St. Ind. 1894, and section 1783, Horner's Ann. St. Ind. 1897. These statutes provide that, unless the accused be brought to trial within three terms after admission to bail, he shall be discharged, unless the delay be caused by his own act. Held, that the prisoner, not having been brought to trial within the time prescribed by said statute, was entitled to be discharged.

These cases, with the case of Van Buren v. People, 7 Colo. App. 136, 42 P. 599, are all the cases cited and relied on by the relator. This last-named case holds:

"The elapse of three full terms of court after the issuance of a capias and arrest of the defendant without application to postpone or delay the trial, entitled him to a discharge, notwithstanding he was out on bail."

All the cases (with few exceptions) cited by relator upon the subject of the right of his discharge for want of speedy trial are either error or appeal cases, and not mandamus.

Many courts of last resort have defined the legal meaning of a speedy public trial, but we submit that in none of the states in which this question has found judicial investigation and decision have the facts regarding the condition of the courts been such as existed in the Indian Territory prior to statehood. It is well known to the bar, and public generally, in this state, that a condition existed in the federal courts of the Indian Territory before statehood unprecedented in the history of jurisprudence of the nation. Until about two years prior to statehood only four judges were provided to hold court in the entire territory, comprising the Five Civilized Tribes, and a population of, approximately, 800,000. It will be remembered that said judges had jurisdiction of all classes of criminal cases, from the smallest misdemeanor to capital offenses; and, also had jurisdiction of all civil cases, including chancery and probate matters. It was, therefore, a common occurrence to find upon the dockets of said courts thousands of undecided cases, both criminal and civil. It was, under such conditions, a physical impossibility for said courts to give all the accused speedy trials. It will be conceded that said courts did all in their power to dispatch business; so much so, that the haste in which cases were sometimes disposed of often brought a blush of shame upon the cheek of the members of the bar, the jurors, and spectators This condition of affairs, combined with the ambition of at least one of the judges of said federal court to dispose of more cases than any of the other judges, caused him to attempt the horrible feat of sentencing 100 prisoners in 100 minutes, and similar travesties upon justice and the forms of law. The government sought to aid the congested condition of the dockets in said courts by appointing, about two years before statehood, four additional judges; but the number of accumulated cases and new cases had so grown upon the dockets of said courts that it was impossible for the additional judges to much relieve the situation. Therefore, in deciding the question of a speedy trial in this case, due regard should be had to all the facts and circumstances. It must also be remembered that respondent in this case fell heir, so to speak, to the congested condition of the docket in his district, and in which the relator's cases are pending; also that, necessarily, delays were caused by the change of the form of government, and the inauguration of the state courts.

Many courts of last resort in states where conditions have been much more favorable to the enforcement of the right of a speedy trial than those existing in this state at this time have defined the legal meaning of a speedy public trial. One of the early cases on this subject is found in the case of Nixon v. State, 2 Smedes M. (Miss.) 497, 41 Am. Dec. 601. The first syllabus of this case reads:

"By a speedy trial is intended a trial conducted according to the fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and offensive delays manufactured by the ministers of justice."

In State, Respondent, v. Huting, 21 Mo. 464, referring to a statute in that state conferring the right of speedy trial, bottom of second syllabus says: "The statute was intended to operate only when there is some laches on the part of the state." In this case the court further holds:

"It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for trial. Nor does a speedy trial mean a trial immediately upon presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment has been found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, while it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence, or exertion from the courts or representatives of the state, nor does it contemplate that the right of a speedy trial which it guarantees to the prisoner shall operate to deprive the state of a reasonable opportunity of fairly prosecuting the prisoner."

The right of a speedy trial is necessarily relative; it is consistent with delays, and depends upon circumstances. It secures rights for the defendant, but it does not preclude the rights of public justice. Beavers v. Haubert, 198 U.S. 86, 25 Sup. Ct. 573, 49 L.Ed. 950.

"There is no doubt that necessity, either moral or physical, may raise an available exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was intended to be required of it. The Legislature intended to prevent willful and oppressive delay; and it is sufficient that there is no color of imputation of it." (Commonwealth v. Jailer, 7 Watts [Pa.] 366).

From the proof it clearly appears that there was pending in the district court of Okmulgee county, at the beginning of the September, 1908, term, 419 criminal cases and 409 civil cases; and that since the admission of Oklahoma as a state more cases have been filed that it has been possible to try; and that it was a physical impossibility, and beyond the power of physical and mental achievement, to have disposed of all the criminal cases on the docket within the time of the terms of court as fixed by order of the Supreme Court. Ordinarily, a court should require a showing to be made by affidavit, in order to continue cases for the term, when such continuances are objected to by either party; but when a condition of affairs exists that is notorious, and about which, from its very nature, there could be no conflict, the court is authorized, by its own motion, to continue the causes for the term. The regulation of the business of the term is a matter exclusively within the control of the judge, and cannot be interfered with. Ex parte Larkin, 11 Nev. 90; Ex parte Stanley, 4 Nev. 116.

In State v. Enke, 85 Iowa 35, 51 N.W. 1146, held: Where the trial has not been postponed upon defendant's application, if he be not brought to trial at the next regular term of the court in which the indictment is triable, after the same is found, the court must order the defendant to be dismissed, unless for good cause to the contrary. In this case the record did not show that the accused made objection to the continuance of the case. The court held: "We do not think that it was necessary that the record should show the reason why the case was continued."

In New Jersey the statutes provide that every indictment shall be tried at the term or session in which issue is joined, or the term after, unless the court, for just cause, shall allow further time for the trial thereof, and, if such indictment be not so tried, the defendant shall be discharged. The Supreme Court, in the case of Patterson v. State, 49 N.J. Law, 326, 8 A. 305, where the accused relied upon this statutory provision in support of his motion to be discharged held that the statute was drafted to effectuate the purpose which the constitutional guaranty of a speedy trial was designed to secure, that the remedy of accused lies in the first instance in the trial court, for the reason that the existence of facts which will afford a just cause for allowance of further time is peculiarly within the knowledge of the trial court, and that nowhere else can the exercise of the discretion be so intelligently discharged.

Judge Cooley, in his excellent work on Constitutional Limitations, says: "It is required that the trial shall be speedy; and here also the injunction is addressed to the sense of justice and sound judgment of the court." Cooley on Const. Lim. p. 311.

It must appear that the application was made to the trial court for discharge, and that there was an arbitrary and causeless refusal to do so, before a discharge would be ordered by appellate court. It would be presumed that the court exercised discretion in a proper, honest, and judicial spirit; and that sufficient reasons were before the court to justify the delay. An appellate court will not review the exercise of discretion by a lower court, unless it appears from the record or proof that the trial court had abused such discretion.

Section 2192, Mansfield's Digest of the Laws of the State of Arkansas, was passed to protect prisoners, and afford them a speedy trial. If, therefore, the state should indict a person and confine him in the prison of the county, or cause him to give bail, as the case may require, and afterwards took no steps to bring accused to trial, and thus lie by and do nothing until the third term after that at which the indictment was found, such delay and neglect on the part the state will authorize and justify the discharge of accused from such offense. On the other hand, if the state makes every proper and reasonable exertion to bring the accused to trial, yet fails, from causes beyond the control of the state, the trial may be properly delayed.

A fair and reasonable construction of sections 2192 and 2193 evidently contemplated that the accused is not to be discharged, as a matter of course, after the expiration of three terms, or at any other term, except on application to the court. Upon such application being made, it becomes a question whether the delay resulted from any of the causes which were contained in said section 2193. If the delay was not occasioned by any of the causes within the exception, the court, if so satisfied, should order the relator discharged. But, if, however, the court, upon such application being made, should be honestly satisfied that the delay was the result of one of the causes within the exception, it would be the duty of the court to continue the cause until the next term, and hold the accused, unconditionally, to await his trial as long and as often as the state is able to make it truthfully appear that the occasion of the delay is one of the excepted causes enumerated in said section.

The court below is authorized to use its discretion in the disposition of such motion to discharge, unless the accused has made out a case in all respects free from any of the statutory exceptions. Then such court has no further discretionary power to continue — the application and motion to discharge should be allowed.

In support of the findings of the court in this case see copious notes to Nixon v. State, 2 Smedes M. (Miss.) 497, 41 Am. Dec. 601, and Dillard v. State, 65 Ark. 404, 46 S.W. 533; In re James Dykes et al., 13 Okla. 339, 74 P. 506; Ex parte McGehan, 22 Ohio St. 442; United States v. Fox, 3 Mont. 512; State of Iowa v. Enke, 85 Iowa 35, 51 N.W. 1146; Wood v. Strother, Auditor, 76 Cal. 545, 18 P. 766, 9 Am. St. Rep. 249; Ex parte Turman, 26 Tex. 708, 84 Am. Dec. 598; People v. Benc, 130 Cal. 159, 62 P. 404; Ex parte Larkin, 11 Nev. 90; People v. Henry 77 Cal. 445, 19 P. 830; Commonwealth v. Adcock, 8 Grat. (Va.) 661; Roebuck, Plaintiff in Error, v. State, 57 Ga. 154; State of Utah v. Endsley, 19 Utah, 478, 57 P. 430; In re Murphy, (C.C.) 87 F. 549.

The proof fails to show laches on the part of the court below in bringing relator to trial — the contrary is shown to be true. At the first term no jury was summoned, and the term so-called (as we above stated) was for the purpose of organizing the state courts, it being the first term under statehood. The second term complained of, the jury was discharged on account of smallpox epidemic, but not until after the witnesses for the state had been subpoenaed in relator's cases for February 10th, of said term, which shows diligence on the part of the officers of the court and respondent to bring relator's cases to trial.

For the reasons herein stated, the peremptory writ of mandamus is denied.

FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.