The appellant was convicted of murder in the second degree for the killing of his brother Jack Venters, the jury assessing his punishment at ten years in the penitentiary.
The trial and conviction were had at the March term, 1885. At the March term, 1884, the cause was reached and called for trial, whereupon the district attorney announced not ready and filed his motion for a continuance. The court heard the motion and overruled the same, thus requiring the State to announce ready for trial. Thereupon the district attorney prepared his motion to dismiss or nolle prosequi the cause, and filed it. This motion, over the objection of the defendant, was sustained, the cause was dismissed and the defendant was retained in custody by order of the said court, until the district attorney could procure another indictment against him. The defendant was so held in custodjq and the indictment upon which he was tried and convicted was presented.
When this cause was called for trial, the defendant entered his special plea in which he specially pleads this matter, and says that by reason thereof be should not be further prosecuted. To this plea the district attorney excepted or demurred, and the court sustained the exception or demurrer; to which action of the court the defendant excepted and reserved his bill of exceptions. When the case was dismissed and the defendant remanded to custody, the court granted him bail in the sum of §1,000.
It is insisted by counsel for appellant that his plea shows that he has been deprived of a constitutional right: that of a speedy trial. In the motion to nolle prosequi, the only ground relied upon by the district attorney is the fact of the absence of a material witness, necessary to a conviction. The district attorney’s motion for a continuance based upon the absence of this witness had been overruled by the court. The question presented under the particular circumstances of this case is, does the entry of a nolle prosequi by the competent authority put an end to the case? And does it therefore operate as a bar to a subsequent indictment for the same offense?
Counsel for appellant contends that, as the district attorney’s motion to continue the case was denied and overruled, the appellant had the right to demand a trial, and that the entry of a nolleprosequi, under such a state of case, had the effect to end the prosecution. There is great force in this proposition. The State attempted to continue. The court held that she had no good and valid grounds for a continuance, and overruled the application. Defendant demanded a trial. To this demand he was answered with a nolle: prosequi, but still held in custody until another indictment could be-*210procured. This being presented, the case was, by operation of law, continued to the next term of the court. The legal effect of this whole matter was to give to the State a continuance of the cause, when by the law of the land she was not entitled to it. Why overrule the State’s direct application for a continuance, and grant it indirectly?
Again: suppose this course be repeated at each succeeding term of the court? Why have laws prescribing the requisites of an application for a continuance when made by the State, if a nolle prosequi will effect the same object?
We have made these observations to show that such a procedure, if persisted in, would result in very great oppression to a party charged with an offense. And if a case should arise in which it appeared that such a procedure was had for the purpose of depriving the citizen of “ a speedy trial,” we think that the proper relief would be found.
But, after a very careful examination of the authorities bearing upon this subject, we have not been able to find one which authorizes such a plea as the one interposed in this case. (Whart. Cr. Pl. & Pr., 447; U. S. v. Stowell, 2 Curt. C. C., 170; U. S. v. ShoemaKer, 2 McLean, 114; Com. v. Wheeler, 2 Mass., 172.)
After the nolle prosequi, there was no authority under our statute to hold the defendant in custody. This was an end of the prosecution under that indictment, and there is no provision of the Code by virtue of which the defendant could be held in custody for the offense charged in that indictment. It is true that articles 545 and 547 of the Code of Criminal Procedure furnish authority for holding the defendant in custody when a motion to set aside, or exception to an indictment, has been sustained. But in this case there is no complaint made to the indictment, and hence these articles do not apply. It is unnecessary for us to decide whether the court had the right to order the defendant into custody, or whether a complaint could legally have been made against the defendant for the same offense contained in the indictment nolle prosequiecl, and an examination had thereon, etc. We simply mean to say that our Code furnishes no authority to hold the defendant in custody when a nolle prosequi is entered upon a good indictment.
But, returning to the question as to whether the defendant in this case was deprived of a speedy trial, we are of the opinion, viewed in the light of the authorities, that he was not. Let us suppose that the court had sustained the application made by the district attorney for a continuance, and that said application was fatally defective. *211A continuance under such circumstances would have had precisely the same effect upon the rights of the defendant to a speedy trial as the course actually pursued in this case. And a repetition by the court of granting a continuance upon such defective application might lead us to conclude that this course of procedure was solicited for the purpose of defeating the defendant’s right to a speedy trial. In such a case we think that a remedy could be found by which he could be relieved from such oppression.
In the case in hand, we fail to find that it was the intention of the district attorney and the court below to deprive the defendant of his constitutional right to a speedy trial, and hence the court did not err in sustaining the exceptions of the district attorney to the special plea of the defendant.
Appellant assigns as error that he was not “ arraigned as required by law.” The record does not support this assignment, but shows a legal though not a formal arraignment. Also that the court erred in admitting the evidence of Mattie Brown and Maria Dunlap, because the statements of the deceased were not dying declarations, etc. We have no doubt- but that his statements were properly admitted as dying declarations, if not as res gestes.
5th. “ The court should have charged the law applicable to a case of circumstantial evidence.” This is not a case depending alone upon circumstantial evidence.
6th. “Because the court erred in failing in its charge to properly define express malice.” Appellant was not convicted of murder in the first degree, but of the second degree, and hence a failure to properly define “ express malice ” could not have injured the defendant.
“ 8th. The court erred in failing to properly define manslaughter.” This objection is not well taken, because the charge of the court upon this degree of homicide is, we think, unexceptionable.
We have very carefully examined this record, and must say that we think that the learned judge who tried this case gave the defendant a fair trial. The charge is full, just and liberal to the defendant, presenting the law fully and clearly to each and every phase of the case. In fact it is unobjectionable in any respect, so far as we can perceive.
We have carefully considered all of the assignments of error by the appellant, and are of the opinion that none are well taken. The judgment is therefore affirmed.
Affirmed.
[Opinion delivered May 9, 1885.]