On May 14,1923, the petitioners filed with the clerk of this court a transcript of the record of the proceedings had in their cases in the Lee Circuit Court, and prayed an appeal from the order of that court overruling the motion to discharge them. Along with this record they filed a petition to this court in which they alleged that they were indicted for murder in the first degree in the Phillips Circuit Court at the October, 1919, term; that they were twice tried and convicted in that court, and, on appeal to this court, the judgments were reversed, and the causes remanded for a new trial; that at the May, 1920, term of the Phillips Circuit Court a change of venue was granted them and their cases were transferred to the Lee Circuit Court; that at the October, 1921, term of the Lee Circuit Court the cases were continued by consent; that at the April, 1922, term of that court the petitioners filed a motion to have their cases set for trial on a day of that term; that the cases were not tried .at that term, but were continued without the consent of the appellants, who were present and demanded a trial ; that at -the October, 1922, term of that court the appellants again filed a motion in open court asking that their cases be set for trial' on a certain day; that the cases were not tried at that time, but were continued, in spite of the fact that the appellants were present demanding a trial.
Appellants further alleged that at the April, 1923, term they filed in open court a motion for a discharge on the ground that they had not been brought to trial before the end of the second term of the court having jurisdiction to try their cases; that the court, upon hearing the motion, found that there had been time to try the causes at the April and October, 1922, terms; that the petitioners had not consented to a continuance of their causes, but the court overruled the motion to discharge. The petitioners moved for a new trial, which was overruled, and they prayed an appeal to this court, which prayer was denied.
The petitioners further alleged that they had been confined in jail in Phillips and Lee counties since the finding of the indictments, and that they are now confined in the Lee County jail. They alleged that, by reason of the delay on the part of the State, they have not been brought to trial before the end of the second term of the court having jurisdiction of the causes, and that, under the Constitution and statutes of this 'State, they are entitled to be discharged from the offenses for which they are indicted. They alleged that the Lee Circuit Court, at its next October term, will proceed to try them, unless prevented by this court, which trials will cause these peti-f tioners to spend large sums of money in defense, which! they are unable to bear; that the Lee Circuit Court is-’ without jurisdiction to try them. Wherefore, they pray that an appeal be granted by this court from the final order of the Lee Circuit Court overruling their motion to discharge, and that they be discharged from said indictments and from custody.
There is an alternative prayer in their petition for a writ of certiorari directed to the clerk of the Lee Circuit Court, commanding him to certify the transcript of the record of the proceedings in the Lee Circuit Court on their petition for discharge, and the further alternative prayer for a writ of prohibition directed to the judge, of the Lee Circuit Court and the prosecuting attorney of that circuit, prohibiting him from proceeding to try the petitioners. The record filed along with the petition shows a motion for discharge in the Lee Circuit Court, in which the facts, substantially as alleged in the petition here, are set up, and a response to that motion, in which the prosecuting attorney -admits that the defendants were twice tried and convicted, as set up in their motion, and that the causes are now awaiting trial. He denies that the causes were continued, as therein alleged, without the consent of the defendants, but alleged that the defendants did not move to have their canses set down for trial at the October, 1922, term of the Lee Circuit Court until it was too late to try these causes during the regular term of that court, and, upon the application of the defendants, the regular October, 1922, term of that court was adjourned until December 11, 1922, for the express purpose of trying these causes; that on the day set for the adjourned term of the Lee Circuit Court the regular term of the Phillips Circuit Court was in session, and the adjourned term of the Lee Circuit Court lapsed for that reason.
The prosecuting attorney alleges that the continuances complained of have been brought about by the consent and at the solicitation of the defendants. The response to the motion to discharge further set up that the State could not get ready to try the causes at that term of the court, for the reason that the witnesses who testified for the State in the two preceding trials, and on whom the State relied for conviction of the defendants, are now confined in the Arkansas State Penitentiary. The prosecuting attorney alleged that he had been informed that these witnesses have recently repudiated their former testimony, and that they will not, if the causes are now tried, testify to the same state of facts testified to by them in the two former trials. He further alleged that, since discovering the fact of repudiation of these witnesses of their former testimony, the State had not had time to ascertain the whereabouts of other witnesses who knew and would testify to substantially the same state of facts. He further alleged “that by reason of the fact that the homicide charged against the defendants was committed three and a half years ago, witnesses whom the State desires to have subpoenaed have become scattered over the State of Arkansas and in many other States, and that the State has not had sufficient time, by reason of said facts, to have the necessary witnesses brought to this court; that it will be impossible, or practically so, to locate the present whereabouts of these witnesses, who are now living in various communities over the State, and to have them served with process sooner than the next regular fall term of this court; that the testimony of these witnesses is material, and that the State cannot be ready for trial at the present term of this court.”
The record shows that, on the hearing of the motion, the defendants (petitioners) called as a witness Ed Ware, one of the defendants, who testified, in substance, that he was one of the defendants indicted for murder in the first degree in the Phillips Circuit Court; that he had never consented to the continuance of his case. It is admitted by the State that the other defendants would testify the same.
The clerk of the Lee Circuit Court testified, in substance, that the April, 1922, term of the Lee Circuit Court was in session eleven judicial days out of a total of three weeks, or eighteen judicial days for that term. These eases were not set for trial at that term. On the eighth day of the term a motion was filed by the defendants to have the causes set down for trial. This motion was filed April 6, 1922. The record does not show any action taken on the motion. The October term, 1922, was in session ten judicial days when it adjourned until December 11,1922. At that term the defendants filed a motion to set their cases down for trial. The cases were set for the second Friday. The second Friday the court was engaged in trying another case, State v. Cothran, which was not completed until the next day, Saturday. On that day, while the Cothran trial was proceeding, the court excused the regular panel of the jury for the term, except those engaged in the trial of the Cothran case. The court did not meet on December 11, the day fixed for the adjourned term. The record does not show that the cases against the defendants were continued until the second Monday in December. The record does not show for what purpose the adjourned day was to be held.
Judge J. M. Jackson, who was the judge of the Lee Circuit Court at the time the proceedings were had, testified, for the State, that a motion was filed on the sixth day of the October term by the defendants to set a day for the trial of their cases. The motion was granted, and the cases were set for the second Friday. On the second Friday the court was engaged in the trial of State v. Coth-ran, on trial for murder. The purpose of adjourning the Lee Circuit Court until December 11, 1922, was to try these defendants. Mr. Burk Mann was present as their attorney, and filed the motion and discussed the cases with the court. He said that he had not collected his fee and that on that account he consented in open court to the adjournment until December 11 for the purpose of trying these cases. The Phillips Circuit Court meets after the adjournment of, the Lee Circuit Court, and the Phillips Circuit Court was in session at Helena on December 11. That is the reason the adjourned term of the Lee Circuit Court was not held. After the jury in the Cothran case was impaneled, witness excused the remainder of the jury for the term. The cases against the defendants were not, tried at the regular October term, for the reason that witness and the attorney representing the defendants had agreed on a special term of the Lee Circuit Court for December 11, 1922, to try them, and for the further reason that there was not sufficient time to try them. There was a full week of the Lee Circuit Court after the trial of the Cothran case. Witness was asked this question: i£Q. Then it was not for the lack of time that they were not tried? A. Yes, it was. Q. Couldn’t it have been tried? A. Not with Mr. Smith and you and the other attorneys in this case examining the jurors. I don’t think, if you had had a full week, you could have started. Q. You had a full week after Saturday to try them? A. Oh, possibly we could have tried one — maybe two. ’ ’ The agreement to a continuance of the case was in open court.
Burk Mann was called in rebuttal by the defendants, and testified that he was one of the attorneys for the defendants, and filed the motions requesting the setting of the cases for trial. At neither the April or the October terms, 1922, did witness consent to a continuance. Judge Jackson was mistaken. Witness did not consent to a continuance or to having the cases set down for trial at the adjourned term in December. Witness called the attention of the court to the filing of the motions at the time. As soon as the court got through with the Cothran case the court adjourned, and witness was not present at that time.
R. D. Smith testified for the defendants, in rebuttal,’ that he was one of their attorneys; that he had no knowledge of the continuance or of an agreement to continue, and did not himself agree or acquiesce in a continuance of the cases.
The written motions that were filed to have the oases set down for trial were as follows: “Come the defendants in the above styled cause by their attorneys, Mann & McCulloch, and Murphy, McHaney & Dunaway, and move the court to set their cases for trial for a day certain during the present term of court.”
The order overruling their motion to discharge was as follows: “This cause being heard upon a motion to dismiss the prosecution and the response thereto, and the oral testimony introduced in support of the response, the court finds the facts to be that there was sufficient jl time at the April, 1922, term of this court to try the causes: that there was sufficient time at the regular Octo-1 ber, 1922, term of this court to try the same; that there’ was not sufficient time at the adjourned day of the f October, 1922, term of this court to try the same, because the Phillips Circuit Court was in session on said adjourned day; that neither the defendants nor any one acting for them consented to a continuance ' of said causes either at the April, 1922, term or at the October, 1922, term, nor did the defendants nor any one acting for them consent to the continuance from the October, 1922, term to the adjourned day thereof on December 11, 1922. The court finds the law to he that said defendants were not entitled to he discharged upon said motion. It is therefore ordered by the court that the motion for discharge he overruled, to which ruling of the court the defendants at the time excepted, and caused their exceptions to be noted of record.”
The petitioners filed a motion for a new trial, setting up that the ruling of the court was contrary to the law and .contrary to the evidence. The motion was overruled, and the petitioners prayed an appeal to the Supreme Court, which the trial court denied, and they filed with the clerk of this court their transcript of the proceedings and the petition as above stated, praying an appeal to this court.
1. The Attorney General contends that the order of the trial court overruling the motion of the petitioners (hereafter called appellants) for their discharge is not a final order from which an appeal will lie, and hence the appeal is premature, and the appellants have not pursued the proper remedy. This presents the first question for decision.
The pertinent sections of Crawford & Moses’ Digest are as follows: “Sec. 3132. If any person indicted for any offense, and committed to prison, shall not he brought, to trial before the end of the second term of the, court having .jurisdiction of the offense, which shall be held after the finding of such .indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall have been on the application of the prisoner.
“Sec. 3134. Nothing in the two preceding sections shall be so construed as to discharge anv -person who may have been indicted for any criminal offense, on account of the failure of the iuda’e to hold any term of the court, or for the want of time to try such persons at any term of the court.
“Sec. 3135. If, when application is made for the discharge of any defendant, under either of the three preceding sections, the court shall he satisfied that there is material evidence on the part of the State which cannot he had, that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may he continued to the next term, and the prisoner remanded or admitted to hail, as the case may require.”
If the statute is mandatory, and the facts developed at the hearing of the motion entitled the appellants to he discharged, then the order of the trial court overruling their motion to he discharged is a final order from which an appeal will lie. This court has appellate jurisdiction over final orders of all inferior courts of the State when such order affects a substantial right in 'an action, and in effect determines the action and prevents a judgment from which an appeal might be tafeen, or discontinues the action. Sec. 2129, C. & M. Digest, snbdiv. 2.
This court, in Batesville v. Ball, 100 Ark. 496-500, said: ‘ ‘But it may he correctly said that a final judgment from which an appeal will lie is one that either terminates ' the action itself, or operates to divest some right in such' - .a manner as to put it out of the power of the court mafe-' ing the order to place the parties in their former eohdi-' tion after the expiration of the term. ■ * * * When a lower, court renders a final judgment upon which an execution may issue, dr one dismissing the cause or the appeal, it thereby puts it out of the power of such court making the order, after the expiration of the term, to place the parties in their former condition, and thereby divests them of their rights, and such judgment or order is therefore final, and an appeal can he taken therefrom. * * * When an issue of law or of fact is passed upon by a court, and an order is made by it which determines the rights of the parties in the action finally, so far as that court is concerned, then such order becomes the final determination of the cause, from which an appeal will lie.”
If the facts existed which entitled appellants to invoke tbe provisions of the statute, then they had the right to their liberty when they moved the court having jurisdiction of their causes to discharge them, and proved the facts which entitled them to such discharge. The overruling of their motion would have the effect not only of depriving them of their liberty, to which they were entitled immediately from the time the motion was overruled, but also of subjecting them to the humiliation, annoyance and expense of a trial on the indictments. The 'statute, if mandatory, was intended to guarantee persons entitled to its provisions their liberty at the end of the second term of the court having jurisdiction of the offense after the finding of the indictment. They are entitled to their liberty at once at the end of such term. If the facts existed which entitled appellants to their discharge under the statute, then the effect of the court’s order was not only to deprive them of the boon of liberty, but to subject them to all the consequences of a trial, or else to resort to some other remedy to prevent it. It is unnecessary here for us to determine whether appellants could have secured their liberty by habeas corpus or whether they could have prevented the trial court from proceeding against them by prohibition. Suffice it to say, they had the right to move the court having jurisdiction of these causes to discharge them from the indictments; and, if they are entitled to such discharge, the granting of their motion by the court would have given them their rights under the statute, -whereas the overruling of their motion denied them such rights. No order or judgment that any court could have thereafter made would have placed them in the position and given them the rights they were entitled to at the time the order herein appealed from was made by the trial court. That order concluded all the rights they then had under the statute, if any, against them, and this is so even though, after the order overruling their motion, they may have resorted to habeas corpus in the same, or some other court, or to this court for a writ of prohibition. The right of immediate freedom and a discharge from all the consequences, of the offense charged against them were certainly most sacred rights. They hear the brand of ‘£ Magna Charta. ’’
Therefore, as before stated, our conclusion is that the order of the trial court overruling the motion of appellants was final, and their prayer for appeal is granted.
2. The next question is, did the court err in overruling apnellants’ motion to be discharged? We are not concerned with the policy of this law. That is for the Legislature. But, as its manifest purpose is to promote dispatch in the administration of justice, it must commend itself to the enlightened judgment of every one who loves law and order as a wise as well a.s humane enactment. “Justice delayed is justice denied,” says Mr. Gladstone. It is highly important to the public weal i that those accused of .crime shall he brought .to a speedy trial in order that, if guilty, public justice may be meted out without delay. This is as powerful a deterrent to the commission of public offenses as is the knowledge that condign punishment will follow when the lawbreaker is overtaken in his crime. It is also humane and just to the accused, who may be innocent, because it imposes upon the ministers of justice the obligation not to unnecessarily delay the trial of the charge which the State has lodged against him, and to afford him an opportunity to prove his innocence before he has been compelled to endure a prolonged punishment by imprisonment beyond the end of the second'term of the court after the term in which he was indicted. These were doubtless the dominant con- \ siderations in the minds of the Legislature when they enacted this statute. It has been a part of our laws ever.1 since the State had an existence. These sections are found in the Revised Statutes and in all our digests. They aré consonant with that provision of our Bill of Rights, art. 2, § 10 of the Constitution, which declares that “in all criminal prosecutions the accused shall enjoy the right ¡ to a speedy and public trial,” and also with art. 2* §- 13, which declares that “he ought to obtain justice freely, and without purchase, completely, and without denial, promptly, and without delay, conformably to the laws.”
This court, as early as Stewart v. State, 13 Ark. 720, in 'an opinion by Chief Justice WatkiNS, construed the above provisions of our statute, and held that, where the conditions exist which entitle the accused to invoke the statute, the provisions of § 3132, supra, are mandatory. It would unduly extend this opinion to quote at length from the opinion of the learned Chief Justice in that case, but a careful reading of the opinion will disclose that the court reached the conclusion that, unless the delay to bring the prisoner to trial by the end of the second term, after the term at which he was indicted, was caused through some necessity in the practical administration of the law, the prisoner would he entitled to an absolute discharge without delay; that the prisoner would ■ he entitled to a discharge where the delay of the State in bringing him to trial is for the want of evidence, “because the statute contemplates that, where the application is made and the grounds of it are well founded, the State may have a delay of one term more, if the judge be satisfied that there is material evidence on the part of the State which she has been unable to procure, but may procure by another term.” As we interpret that decision, the prisoner will be entitled to his discharge under the statute for want of prosecution — that is, by reason of a failure on the part of the State to demand trial and produce ;her evidence against the prisoner — unless the delay was for some other reason than simply a failure on the part of the State to demand a trial and bring forward its evidence. It is such want of prosecution on the part of those intrusted with the due administration of the law that this statute condemns by discharging the prisoner upon his application and a showing that the State had failed to prosecute as this statute required. Where he makes such showing, the court trying the issue is vested with no discretion in the matter. But to entitle the prisoner to snob, discharge be must place 'himself in -an at-, titnde of “having demanded a trial, at least in an attij tnde of resisting postponement.” ■ !,
In the later cases of Dillard v. State, 65 Ark. 404, and Fox v. State, 102 Ark. 393, the statute was again invoked and treated as mandatory, and the case of Stewart v. State, supra, cited approvingly. In each of these cases it was held that the prisoner was not entitled to his discharge .because he had failed to bring himself within the terms of the statute, as was also the case of Stewart v. State, supra. The interpretation of the statute as given by our court in Stewart v. State, supra, is well supported by the decisions in other jurisdictions that have similar statutes.
In the case of People v. Morino, 85 Cal. 515, 24 Pac. 892, it is said: ‘ ‘ The statute is imperative. ‘ The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed.’ Here no cause for delay was shown. It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without a trial, it was for the prosecution to show it. The court could not presume it. Under the facts as shown the case should have been dismissed, and it was error to deny the motion.”
In re Begerow, 133 Cal. 439, 65 Pac. 828, after referring to and approving the doctrine of the Morino case, the court, among other things, said: “And justly it is deemed a matter of the most importance. The government cannot take property from the meanest inhabitant without just compensation paid or tendered in advance; but it takes his liberty, which, it has been justly' said, is to some extent to take his life, upon a mere charge . of crime. This is necessary that society may be pro- , . tected. But necessity is the only excuse, and to imprison i%beyond what is absolutely necessary is tyrannous and op-Jpressive. And this is precisely what the State has .covenanted with each inhabitant that it will not do.” . The prisoner was discharged.
In State v. Kuhn, 154 Ind. 450, 57 N. E. 106, it is said: “When the prisoner brings his case within the limits of the. statute, his right to discharge becomes absolute. The courts seem united upon this point.” And again: The statute “making effective constitutional guaranty o'f a speedy trial confers an absolute right on a person charged with crime and imprisoned to be set at liberty unless tried within the time limit.” In this case it was held that the judgment discharging the prisoner, under a statute similar to ours, will not be reversed on the ground that the time of the court was occupied in the trial of other causes, where it was shown that at least eight days of the third term after defendant was admitted •to bail were occupied in the trial of civil causes. The prisoner was discharged.
In State v. Keefe, 98 Pac. 122, a statute was under ■review which reads as though it might have been copied from our statute, or the Missouri statute, from which our statute was probably borrowed. The court concluded ■a most learned and exhaustive opinion as follows: ‘ ‘ The court decides that the fact of defendant’s imprisonment in the penitentiary, under the circumstances set forth in •the agreed statement of facts, does not constitute a sufficient defense to the application of the defendant for his discharge; that §§ 5382 and 5384 apply to the defendant, and, upon the facts, the defendant has not had a .speedy trial as provided in the Constitution.” See also Hollandsworth v. Godby, 117 S. E. 369.
In State v. Wurdemam, 246 S. W. 189, the Supreme Court of Missouri handed down the opinion December 6; 1922. It' was pleaded that there was time to try the case, and the demurrer admitted that fact, and also admitted that the defendant had made no application for ' delay. The court, among other things, said: “The statute is mandatory, and imposes upon the State the. duty to bring the defendant to trial before the end of the third term of the court after the term at- which-the indictment was found. * * * These are criminal statutes, and should be strictly construed in the interest of the liberty of the citizen. The statute- says the defendant ‘shall be entitled to be discharged’ save in the two excepted situations, supra. Usually the use of the word ‘shall’ indicates a mandate, and unless there are other things in a statute it indicates a mandatory statute. Especially is this true in a statute calling for strict construction. # * A defendant is entitled to the pound of flesh granted to him by the mandatory language of the statute. ’ ’
3. Such is the law. What are the facts? For the sake of clarity we will briefly restate them here as found by the court. There was sufficient time at the April > term, 1922, to try the causes. There was sufficient time ¡ at the regular October, 1922, term, but not sufficient ; time at the adjourned day of the October, 1922, term, ' because the Phillips Circuit Court was in session on that day. Neither of the defendants, nor any one acting for them, have consented to a continuance of the causes at either the April or the October terms, 1922, nor to the continuance from the regular October term, 1922, to the •adjourned day on December 11, 1922. The court might have found the further facts to be that, even at the time of the application of the appellants for their discharge, the State did not show that there were other witnesses who would give material evidence in its behalf to prove the guilt of the defendants, and that reasonable exertions had been made to secure such evidence and failed, and that there was just ground to believe that such evidence could be had at the next term if the cause were continued to such term. True, in the response to the application for a discharge the State set up that it had not had time to ascertain the whereabouts of other witnesses who knew and would testify to substantially the same state of fasts upon which the defendants had been formerly convicted. These allegations of the response were the merest drag-net. They did not name a single witness, nor set up any facts to which any witness would testify if the cause were continued. They did not designate any- place where a single witness could be found. Taken as a whole, the allegations of the response were but tantamount to saying to the court, ‘‘ There are some witnesses somewhere scattered throughout the State, who, if found, will furnish material evidence for the prosecution, and, if the cause is continued, the State will endeavor to produce them.” These allegations were too vague and indefinite to furnish grounds for the refusal of the application, under the provisions of § 3135, supra. They were •equivalent to no more than a pronouncement and promise upon the part of the State that, if the cause were continued, it would enter upon a search for evidence. But the State had no right at that term to continué' for want of evidence; that right had been lost by failure to ask such continuance at the previous October term, 1922.
The facts found by the court show conclusively that the delay in the prosecution was not on account of the failure of the judge to hold any term of the court, because at the time the regular October, 1922, term was adjourned until December 11, 1922, there was sufficient time of the regular term to try the causes.. Likewise, there had been sufficient time at the previous April, 1922, term to try the causes. So the delay in prosecution could not have been based upon the exceptions contained in § 3134, supra.
The court expressly found the facts to be that neither the defendants, nor any one acting for them, consented to the continuance either at the April or October, 1922, terms. The delay to bring the appellants to trial could not have been caused by the application of the prisoners for continuance. The motions asking the court to set the causes down for trial at both the April and-October, 1922, terms, the testimony, and the findings of the court based thereon, show that the appellants were ready for and demanding trial. It must be held that such was the effect of the findings of the court, and that neither the appellants nor any one acting for them have consented to a continuance. The undisputed facts are that the court, on the day the appellants’ causes were set for trial, was engaged in the trial of another murder ease, which trial was not concluded until the next day, Saturday, and before that trial was ended the judge discharged the regular panel of the petit jury for the term. This conduct of the judge was equivalent to an announcement to the attorneys and all parties in attendance upon the uourt that the court would not hear' any jury trials after the trial then in progress was concluded. If such was not the purpose of the court, and the presiding judge would have tried the appellants’ cases, a sense of justice and fairness should have prompted him to notify appellants’ counsel of that fact. The act of the court shall prejudice no one. Therefore appellants cannot be charged, after this act of the court, with a lack of diligence in demanding a trial, or failure to protest against the court’s action. At any rate, the finding of the trial court on the motion to discharge, to the effect that the appellants were not consenting to a continuance of their cases, is sufficient to show that they had exercised due diligence and were demanding a trial at the regular October term, 1922. This finding of the trial court was based upon the undisputed evidence, because when these prisoners filed their motions asking for a trial they ipso facto put themselves on record as resisting a postponement of the cases. Therefore denial of the application could not have been bottomed on the exceptions contained in § 3132, supra.
Nor was there a continuance from the October term on account of failure of the State’s evidence so as to entitle the State to a continuance to another term to procure evidence. It is undisputed that the cause was postponed at that time, not on motion of the State to procure evidence, but merely because the trial judge saw fit to postpone until the adjourned day of the court, which failed because of the holding of the Phillips Circuit Court on that day. Therefore the denial of the application could not have been predicated upon the provisions of § 3135, supra. The truth is there was a failure of prosecution, pure and simple, because the State did not demand a trial and bring forward its evidence in support of the charge made in the indictments.
The conclusion of law of the trial court was not based upon its findings of fact, but was directly contrary to such findings. We are bound by the court’s findings of fact, but not by its conclusion of law. The court erred in its conclusion of law. The law applicable to the facts must be declared, else the appellants will be deprived of the right to a speedy trial, which the framers of our Constitution and the framers of this statute purposed that every person charged with a public offense should have. That every such person has such right, under constitutions and statutes similar to ours, is, so far, proclaimed by the authorities with one voice.
The order of the trial court overruling appellants’ application for discharge is therefore reversed, and an order will be entered here directing the sheriff of Lee County to discharge the appellants -from custody.