The defendants were indicted for simple larceny. Previous to the term of the court at which' the trial was had, the defendants had demanded a trial, which demand was entered on the minutes of the court. At the next term, the defendants were put upon their trial, but the jury failed to agree *25upon a verdict, and a mistrial was ordered by tbe court, without the consent of defendants. They then made a motion to be discharged, which motion the court refused, and the defendants excepted. It appears in the record that the jury were charged with the case, in the afternoon of one day, and remained out until ten o’clock the next day, and failing to agree on a verdict a mistrial was ordered by the court. The motion to discharge the defendants was properly overruled. The court could have put the defendants on their trial before another jury at the same term of the court, as a trial had been demandéd under the statute at that term, and we suppose, proposed to do so, inasmuch as the defendants continued the case on their own motion. The record does not show that the defendants were prevented by the court from having a trial at that term. The fact the court ordered a mistrial without the consent of defendants, under the circumstances stated in the record, did not entitle them to be discharged.
Let the judgment of the court below be affirmed.