Indictment for a felony. Conviction, and sentence to the State prison. The trial occurred at the November term of the Marion Circuit Court, 1860. Before it took place, however, the Circuit judge had made an adjournment, entered of record, of the Court, from the 3d to the 9th day of November, being a longer period of time than three days.
Thomas _Z>., and B. L. Walpole, and 8. A. Oolley, for appellant. William P. Fishhook, for the State.It is claimed that such adjournment operated as an adjournment of the Court till the next term in course, and that the trial of this cause, which took place after such adjournment an(j pefore ¿pe term in course, was a nullity.
The statute provides:
Seo. 16; “ There shall be no discontinuance of any suit, process, matter, or proceeding whatever, returnable to, or pending in, any Circuit Court, by reason of a failure of the judge to attend on the first or any other day of the term.”
Seo. 17. “If such judge shall not attend, the clerk or sheriff may adjourn the Court for two days successively; and, if such judge shall not attend on the third day, or having attended one day, shall fail to attend for three successive days of the term, the Court shall stand adjourned until Court in course; unless a judge pro tempore has been appointed as herein provided.” 2 R. S., § 17, p. 7/
The pro tempore judge, mentioned, may be appointed to hold a term, or part of a term, where there has not been an adjournment; but he can not hold during a time when the Court has been regularly adjourned.
We think § 17 meets the case, and that only, where the judge is absent without having made a regular adjournment of Court for the time of his absence.
Per Curiam.The judgment is affirmed, with costs.