Opinion
October 1807.
A defendant confined on a criminal charge is entitled to his discharge, if no attorney-general, or other person appear to prosecute for the State.
He was committed for stealing goods out of Porter's store in Carthage. 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 any thing to say why the Court should not discharge the defendant, as his counsel insisted that he had a right to claim his discharge.
The ninth section of the Bill of Rights secures to the citizen 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 and POWEL, JJ., gave no decisive opinion on this ground, but the prisoner was discharged.