title Criminal Proceedings,) all indictments, where the defendant is in custody, or under recognizance, must be tried at the term at which they are found, unless good cause for continuance be shown by either party. It was as obligatory upon the State to be ready to try the prisoner then as at any subsequent term, and for aught that appears she was ready. Independent of the phraseology of section 179, our conclusion is strengthened by construing it with reference to section 170.
But this opinion is not to be understood as conceding that the positions assumed for the plaintiff in error, as to the failure of the State to bring him to trial, are well taken. Conscious that they present a question of much difficulty, we proceed to notice them, not to anticipate any future case that may arise, but because the question being raised on this record, it is our duty to notice it.
It is insisted, on behalf of the plaintiff in error, that the statute is imperative, and that if for any cause not coming within one of the exceptions, the prisoner, who stands indicted, be not brought to trial for the number of terms prescribed, he must be discharged, and a literal construction of the statute would favor this interpretation.
Society, for its own safety, is equally interested in protecting the innocent and in punishing the guilty. The sections quoted were designed to shield the innocent from oppressioin, but not to enable the guilty to escape. The discharge, if the prisoner be entitled to it, must be absolute and without day; because, if he were liable to be again arrested, and indicted for the same offence, the discharge would be the means of aggravating the evil which the statute sought to remedy; and it is to be gravely considered what consequences might follow from the liberal construction claimed.
Suppose, then, the judge did not fail to hold the court, but was called away by some unavoidable casualty during the term, or that the attorney for the State should find it necessary to challenge the array and set aside the panel of jurors returned, for the fraud or favor in the sheriff, so that there would not be time at that term for another venire to be returned, and a list of jurors
