
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1806.
    The State v. Stalnaker.
    Two bills of indictment had been found.against the prisoner for passing counterfeit bank bills; ho demanded his trial on both, but was tried only on one, convicted, and sentenced to be hung. Afterwards he was pardoned by the governor, and sot at liberty; when he was again arrested on the second indictment. An application was made for his discharge under the habeas corpus act; and a majority of the judges were of opinion that the prisoner was intitled to his discharge.
    The prisoner was in the prison of Orangeburg district, in October term, 1804, when he demanded his trial. In April term, 1806, two bills of indictment were found against him for passing counterfeit bank bills. At this term he again demanded his trial. He was tried on one oí the indictments, and was convicted. He was not prosecuted on the second indictment, under an expectation that he would suffer death in consequence of his conviction on the first. He was sentenced to be hung, but was pardoned by the governor, whereupon he was set at liberty. He was afterwards apprehended and kept in custody, in order to be tried on the second indictment; and in March term, 1806, was brought up before Judge Gkimke, at Orangeburg, when the Circuit Solicitor not being ready to proceed with the prosecution, the prisoner’s counsel moved that he might be discharged under the habeas corpus act; but this motion was overruled, and the prisoner was remanded. The motion in this court was to have the benefit of the motion made on the prisoner’s behalf in the district court. Clifton, Gantt, and Lesley, for the prisoner; Mr. Solicitor Stabke, E contra. (See State v. Buyk, vol. 1, 460.)
   Bay, Brevakd, and Wilds, Justices,

were of opinion the prisoner was intitled to his discharge. The conviction on one indictment did not prevent the State from proceeding on the other. The prisoner demanded his trial in both cases, and he ought to have been tried at the second court, after demanding his trial on both indictments, or discharged as to the indictment not proceeded on. The Solicitor, and the court, should not have calculated on his suffering death on the conviction in the case, tried. A new trial might have been granted, and the prisoner admitted to bail, or judgment might have been arrested, or (as it happened) there might be a prospect of his being pardoned. To keep him in confinement under these circumstances, would be contrary to the spirit and intention of the habeas corpus act.

Waties, and Trezevant, Justices, contra. It was unnecessary, after conviction on one indictment, to proceed on the other. The prisoner was pardoned at his own instance ; the same as if he had escaped, &c.

Motion granted.  