
    CHARLESTON.
    State v. James Crawford.
    Submitted February 25, 1919.
    Decided March 4, 1919.
    1. Criminal Law — Discharge from Prosecution• — Terms of Court.
    
    Under see. 25 of Ch. 159 of the Code, the third imexeused term after the one at which an indictment for a felony was found is countable for the accused, on his motion for a discharge from prosecution, notwithstanding lack of termination thereof at the date of the entry of a nolle 'prosequi, setting him at liberty, (p. 557).
    2. Same — Want of Probable Cause — Discharge.
    One in whom such right has so vested is entitled to a discharge from prosecution on a second indictment for the same offense, returned several years after the vesting thereof, such dismissal and reindictment being in contravention of the spirit and purpose of the statute, (p. 557)'.
    3. Same — -Refusal to Discharge Defendant- — Conviction—Refusal.
    If, in such .ease, the motion of the accused, for his discharge, fully sustained by the record and evidence adduced, has been overruled and he put upon trial and convicted, the judgment will bo reversed and the verdict set aside, on a writ of error, and the appellate court rendering such judgment as the trial court should have rendered, will sustain the motion and forever discharge the accused from prosecution for the ofíense so charged, (p. 559).
    Error to Circuit Court, Mingo County.
    James Crawford was convicted of voluntary manslaugb-ter, and his motions for new trial and for a discharge being overruled, he brings error.
    
      Reversed, and, defendant discharged.
    
    
      Goodyhoontz & Scherr and Marcum & Marcum, for plaintiff in error.
    
      E. T. England, Attorney General, Henry A. Nolte, As-sistante Attorney General, and B. Randolph Bias, for the State.
   POFFENBARGER, JljDGE;

If the defense underlying the first assignment of error on this writ is well founded and fully established, there will be no occasion for consideration of any of the others. On a second indictment charging the murder alleged in the first, the accused moved the court for a discharge on the ground of detention without trial, under' the former indictment, for such a period of time as confers right of discharge from the offense. The court having overruled his motion, he entered a plea of not guilty and was convicted of voluntary manslaughter. After having unsuccessfully moved for a new trial, he renewed his motion for discharge, which the court overruled and sentenced him to confinement in the pentitentiary for a period of three years.

The identity of the offenses charged in the two indictments is not questioned. Bach of them charges James Crawford with the murder of Lewis Rutherford, and the identities of these persons and the homicides averred, respectively, are proved by the oath of the prosecuting attorney. They differ only as to the date of the homicide, but the allegation thereof is an immaterial one.

The motion is founded upon see. 25 of ch. 159 of the Code, reading as follows: “Every person charged with felony, and remanded to a circuit court for trial, shall be forever discharged from prosecution for the offence, if there be three regular terms of such court, after the indictment is found against him, without a trial, unless the failure to tryv him was caused by his insanity; or by the witnesses for the State being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of Ms escaping from jail, or failing to appear according to Ms recognizance, or of the inability of the jury to agree in their verdict. ’!

Before the end of the tMrd term of the Criminal Court of Mingo County after the one at wMeh the first indictment was found, a nolle prosequi was entered, and the principal inquiry is whether that term can be counted in favor of the accused, continuances having occurred on the motion of the state at the other two terms. That indictment was found at the January term 1911. In that term, there was a continuance on the motion of the accused until April 11, 1911. At the April and July terms 1911, there were continuances of the case on motions of the state. At the next term, the tMrd after the date of the indictment, the nolle prosequi was entered. At the January term 1916, the new indictment was returned. On the motion for discharge, the accused proved his readiness for trial at the April, July and October terms. Presumptively, the state was unable to prove facts applying the exceptions prescribed by the statute relied upon, so as to deprive the accused of the benefit of any of the terms, for it made no effort to do so. It merely denies Ms right to count the October term 1911, because he was not held for trial until it ended. ¡

Whether such a term is to be counted seems never to have been a subject of inquiry in this court or any reported Virginia decision. Upon the legal fiction that a term of court is a single day, the first day thereof, and the tendency of the interpretation urged by the accused to defeat the ends of justice and work a perversion of the statute, it was held in Bell’s Case, 7 Gratt. 646, 8 Gratt. 600, that a person remanded for indictment and trial was not entitled to the benefit of the term in wMeh he was remanded. It had occurred and become complete and full before the remand took place. Besides, a person might be committed for indictment at a date within the term so late as to render it- impossible to afford an opportunity for such action. There is a similar holding in Sands v. Com., 20 Gratt. 800. The first ground of these decisions would bring the October term 1911 within the statute in this case, for it would make it complete before the entry of the nolle. The other argument is inapt, for there isi under the circumstances obtaining here, time for trial and a total 'lack of adventitious circumstances working surprise. The Virginia decisions just, referred to have been incautiously interpreted as requiring full and complete terms. Ex parte Anderson, 81 W. Va. 171. This observation was made merely arguendo and is, therefore, simply an obiter dictum. The question here presented was not involved in the ease at all, nor was it really considered.

Application of the legal fiction invoked in Bell’s Case might result in the loss of the third term to the state, if strictly adhered to, for the impossibility of holding a prisoner into the third term -without passing the first day thereof is obvious,' and, if that day makes the term complete for the purposes of the statute, he could hot be held beyond it. However this may be, the interpretation urged by the attorneys for the plaintiff in' error accords with the spirit and purpose of the statute, while that adopted by the state is highly objectionable, because it tends to deprive the accused of the constitutional right for the enforcement and protection of which the statute was passed. When a prisoner has stood ready for trial through two full terms and substantially through the third one, and, no doubt, until the jury has been discharged and the opportunity for trial at that term annihilated, he has substantially performed all the statutory conditions requisite to his right of discharge. Although such a discharge is not the moral equivalent of an acquittal and he may be guilty, his constitutional right to have his guilt or innocence determined by a trial within a reasonable time cannot be frittered away upon purely technical and unsubstantial grounds. Nor is the legislative act designed to enforce such right to be interpreted otherwise than in accordance with the recognized rules of construction. To permit the state to enter a nolle prosequi within the third term and re-indict for the same offense and thus deprive the prisoner of the terms fully elapsed as well as the term about to end, would make it possible to keep the prisoner in custody or under recognizance, for an indefinite period of time, on charges of a single offense; unless, perhaps, he could enforce a trial by the Avrit of mandamus. Such a construction as substantially tends to the defeat or undue limitation of the purpose of a statute is not permissible in any jurisdiction. That statutes shall be so construed as to effectuate the legislative purpose, not defeat it, is fundamental and all-pervasive in statutory construction. The remedy given by laAV for failure to accord a prompt trial to one charged Avith a felony is right to be discharged, not mandamus to obtain such a trial. Whether the latter would be adequate to diie enforcement of the constitutional right is a legislative question, not a judicial one. The conclusion indicated by these observations harmonizes with the construction given the statute in Ex parte Dudley, 55 W. Va. 472, in which the state endeavored to prolong the detention by a retirement of the case from the docket. Of course, there is a difference between a retirement from the docket and a setting at liberty by a nolle prosequi and betAveen a reinstatement and reindictment, but the decision just mentioned emphasizes the inability of the state to prevent a discharge under the statute, or prolong the detention, by a retirement of the ease, to do indirectly what it cannot do directly. To nolle and reindict is strictly analogous, and just as clearly contraAumes the purpose of the statute. Judge Lynch and I expressed the opinion that it could not be done by an adjournment of the third term of court after the one at which the indictment Avas found, in Denham v. Robinson, 72 W. Va. 243, 255.

That a nolle prosequi does not preclude reindietment is well settled, but that proposition is not inconsistent with the prisoner’s right to a discharge by reason of unlawful detention, nor does it argue anything against legislative intent to enforce the constitutional right of speedy trial. By a dismissal before the right of discharge vests, the state may always save its right to prosecute on a new indictment, and, moreover, every accused person does not stand ready for trial, as did the prisoner in this case. That a dismissal and rein-dictment do not prevent the operation of the statute has been judically declared in well considered decisions in other jurisdiction's. Brooks v. People, 88 Ill. 327; Newlin v. People, 221 Ill. 166; People v. Heider, 225 Ill. 347, 11 L. R. A. N. S. 257, State v. Wear, 145 Mo. 162. The effect of such a discharge' depends upon the terms of the statute conferring the right.. Ours clearly makes it absolute and equivalent to an acquittal,, as regards further prosecution. Adcock’s Case., 8 Graft. 661, 681. For an elaborate review of the cases arising under the-statutes of the several states, see the note to Re Begerow, 56. L. R. A. 513.

The motion for discharge should have been sustained, and’ this court, rendering such judgment as the trial court should; have rendered, null sustain the motion and enter a judgment forever discharging the accused from prosecution for the-offense charged in the two indictments set forth in the record-

Reversed, and defendant discharged.  