(concurring). It is not claimed on behalf of the relator that he was not tried within the time prescribed by the statute, but it is insisted that he ought now, as matter of right, to be discharged from custody, for the reason that he was not re-tried at the time when the cause was again set down for trial by the prosecution. I know of no statute prescribing the particular causes for which a continuance of a trial in a criminal case may be had by the state. It seems that “good cause” therefor must be shown. And perhaps the grounds of the application, whatever they may be, should be made to appear of record, and with the same formality required of a defendant. But when a postponement has been asked for by the prosecuting officer repi’esenting the public, and the grounds *260therefor stated, though informally, and the application has been granted by the court, it seems to me that the mere fact that the reasons assigned for the continuance do not appear to be satisfactory is not alone a sufficient reason for discharging the accused. Before such action is taken, I think it ought to appear plainly that the party asking the discharge is deprived of his liberty without due process of law, or, at least, plainly contrary to the law.
I think the relator is not entitled to a discharge.
Stiles, J.I do not think that a mere statement of the prosecuting attorney, that he did not believe he could get a jury, was any sufficient reason for an indefinite continuance. There were fifty-four jurors still present, and it did hot appear that any of them had ever been called to sit at either of the former trials. The statute requires that good cause be shown for a postponement of a trial, and it should be shown of record with the same formality that would be required of a defendant who would be required to prove his right to a continuance by affidavit. The purpose of this statute was to compel the state to proceed with criminal trials within a reasonable time, or to discharge the accused. At the very least, this petitioner should be allowed to go on his own recognizance as provided in Code Proc., §1370.