delivered the opinion of the court, April 1st 1881.
This is an application of the relator to be discharged from im- . prisonrnent under the Habeas Corpus Act of 18th February 1785, re-enacted by sect. 54 of the Criminal Procedure Act of 1860.
If any person shall be committed for treason or felony or other indictable offence, it declares, inter alia, “if such prisoner shall not be indicted and tried the second term, sessions, or court after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment.” The relator was committed at August Term 1879, charged with murder, and a true bill therefor was found against him at the same term. He was tried at the January Term 1880, and found guilty of murder in the first degree. A motion for a new trial was made in his behalf, and a rule granted. On the last day of the April Term it was made absolute. On the last day of the October Term 1880, being the fourth term after new trial granted, the application for this discharge was made. At the January Term following it was refused.
It is contended in behalf of the relator that he was entitled to be discharged from imprisonment at the end of the second term, after the new trial was ordered, under the Act of 1785. This presents the only question in the case. No complaint is made of any undue delay prior to the trial and conviction. What, then, was the object of the act? It was to prevent wrongful restraints of liberty, caused by malice and procrastination of the prosecutor, producing a wilful and oppressive delay in the trial: Common*215wealth v. Sheriff, 16 S. & R. 304; Same v. Jailer, 7 Watts 366; Clark v. Commonwealth, 5 Casey 134. The express language of the statute does not give this right of discharge in case “the delay happen on the application or with the assent of the defendant.” Thus either application or assent of the defendant to a postponement of the trial deprives him of his right. Nor need it appear that he expressly applied for or assented to the delay. His assent may be presumed from any action of his naturally tending to produce such result. Hence, if one under indictment induces the witnesses on the part of the Commonwealth to keep out of the way so that their attendance cannot be procured, he is not entitled to be discharged under the act, although two terms have intervened after his commitment: Respublica v. Arnold, 3 Yeates 263. So whore one under indictment moved at the second term to quash the indictment, and the court held the motion under advisement during the term, it was held that the delay was equivalent to a postponement with his consent, and that he was not entitled to be discharged under the act: Ex parte Walton, 2 Whart. 501. Where the array of grand jurors was quashed at two successive terms after the arrest of the prisoner, for informality in selecting and drawing them, he was not entitled to be discharged: Clark v. Commonwealth, supra.
The relator had a trial as soon after his commitment as he desired it, There is no allegation that the postponement thereof beyond the second term was not on his application or with his assent. Then the letter and the spirit of the law were fully complied with. There was no unjust delay. After due effect was thus given to all the provisions of the statute, the defendant intervened. He a§ked for and procured an order for a new trial. Having thus procured a new trial, which must necessarily be more than six terms after his commitment, he now' seeks to apply a statute which limits the time between commitment and the first trial to the interval of time after a new trial ordered and the second trial being had. We find no warrant for such application, either in the letter or in the spirit of the statute. It is further contended that, inasmuch as when a verdict is set aside or a judgment reversed and a new trial awarded, the case goes back upon all issues of fact, as if it had never been tried, therefore this statute is made applicable. Conceding the correctness of the rule as to the manner and form to be observed in the second trial, yet the conclusion claimed by no means follows. The interval of time between the commitment and the close of the second term thereafter cannot be retraced, nor the statute, which might then have been invoked, be made applicable to a second period of time commencing long after the expiration of the time specified in the statute.
This application is based on the statute alone. Beyond a denial of its provisions to the case, no arbitrary or unjust detention is alleged. We think, under the facts, the statute is not applicable. No other cause being shown for a discharge from imprisonment,
Prisoner remanded.