concurring:
In regard to the first ground upon which the petitioner claims his release, that is, that the discharge of the jury without a verdict, at the January term of the district court, amounted under the circumstances to-an acquittal, 1 concur in the conclusion reached by Justice Earll, that, even if it *441did amount to an acquittal, it will not avail the petitioner on habeas corpus. The question whether he has been acquitted or not must be determined in another proceeding, and, consequently, the present occasion does not, in my judgment, call for any expression of opinion as;.to the effect of thé discharge of that jury.
In regard to the second ground relied on by the petitioner, it is clear that no case had arisen, at the date of the filing of his petition, to which the provisions of secs. 582, 583 of the criminal practice act are applicable. He had' been brought to trial at the first and second terms after he was indicted, but the juries had failed to agree. At the next' term of the court his case had been continued from one day to a later day but not over the term; and when this petition was filed the term was but half expired. It is clear, therefore, that his application to this court was premature. Ho should have waited till the April term had expired without his being brought to trial, or, at least, until his case had been continued over the term, and then he should have moved the district court for his discharge, or for his release on his own recognizance. If his motion had then been denied without good cause, his imprisonment would have become unlawful, and the writ of habeas corpus would have been his proper remedy.
It should be understood that an imprisonment which is at first lawful, does not become unlawful until the right to bo discharged has accrued, and that right has been denied, after a proper application to the court or officer whose duty-it is to act in the premises. In cases of this sort, the statute expressly provides that the application to be discharged or bailed shall be made to the district court in which the indictment is pending, and it would seem that no express statutory provisions ought to have been required to demonstrate the propriety of such a course.
I concur in the order to remand.