The opinion of the court was delivered by
Horton, C. J.:The petitioner claims that he is entitled to his discharge under the provisions of § 221 of the criminal code, which reads:
“If any person, under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending, which shall be held after such indictment found or information filed, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term.”
1. Habeas corpus; uisciiargedby supreme court. We do not think the proceeding by habeas corpus the proper remedy in this case. The petitioner alleges that the district court refused his application to be discharged . . . . under the provisxons oi § 221 ox the crxmxnal C0(je^ an(j remanded him to custody until he should give bail, and continued the cause for trial. The order of the district court, until reversed, is valid, and sufficient authoi’ity for the retention of the petitioner in custody. We cannot, in a proceeding of this character, review or reverse an order or judgment of the district court, having juris*103diction, when such order is neither void, nor in excess of its authority. (Civil Code, § 671; Ex parte McGehan, 22 Ohio St. 442.) The statutes construed in the cases of Brooks v. People, 88 Ill. 327, and In re Garvey, 4 Pac. Rep. 758, do not provide for any discharge of the offense, but operate merely to set the prisoner at liberty. In this state, the statute provides for the absolute discharge of the prisoner from the offense, and therefore Illinois and Colorado decisions are not applicable.
2' fenaantf no e?In the case of In re Dill, 32 Kas. 668, the petitioner was guilty of no offense, and the judgment rendered against him was void. In that case, he was released from imprisonment upon that ground. But waiving the irregularity of this proceeding, we think the ruling of the district court was correct. The information was filed against the petitioner one day prior to the commencement of the May term of the district court of Sumner county for 1885. At the May term, against the objection of the state and the petitioner, the court attempted to' remove .the case for trial to Cowley county, in another judicial district, upon the ground that the judge was disqualified to preside at the trial on account of his prejudice. This order was vacated upon the motion of the county attorney of Sumner county, on December 12, 1885. The regular tei’ms of the district court of Sumner.county for 1885 were held as follows: The first Tuesdays of May, September, and November. On account of the intervention of the district court of Comanche county, the November term of the district court of Sumner county was adjourned from December' 12, 1885, to January 2, 1886, at which time the application for the discharge of this petitioner was' presented. After the presentation of such application, the state announced itself ready to proceed at once with the trial. The court, however, in its findings of fact, states that there was not time during the period allowed by law for the holding of the November term of court, for the trial of the case upon its merits. The state was not responsible for the discharge of the jury, or the adjournment of the court on Decern*104ber 12, 1885, and we must assume that when it announced itself ready for trial on January 2d, whether any witnesses had „been subpenaed, or not, in behalf of the state, it was capable of producing them if allowed so to do. The statute expressly provides that if the delay to bring a prisoner to trial be occasioned by the want of time to try his cause, the court is not bound to discharge him. (See also §222, Crim. Code.) In several states, as above referred to, statutes similar to ours operate merely to set the prisoner at liberty; but our statute provides, in effect, an acquittal, if the defendant is not brought to trial within the time therein prescribed. Therefore there is good reason for holding that a prisoner ought not to be entitled to his discharge unless he brings himself within the spirit of the statute. The section quoted was designed to shield the innocent from oppression, but not to enable the guilty to escape. (Steward v. State, 13 Ark. 720.) In Clark v. Commonwealth, 29 Pa. St. 129, it was decided, concerning a similar statute, that “it was made to restrain the malice and oppression of prosecutors, and to relieve wrongful imprisonment; not to embarrass the administration of criminal law; not to relieve righteous imprisonment and to defeat public justice.” In Steward v. State, supra, the court construed a similar statute to mean that the prisoner was entitled to his discharge only where the delay of the state in bringing him to trial was for want of evidence; and that within the spirit of the law, the prisoner, to be eixtitled to his discharge for want of prosecution, must place himself on the x’ecord in the attitude of demanding a trial, or at least of resisting postponement.
On December 12,1885, when the jury were discharged, the petitioner was not present, being on bail to appear before' the district court of Cowley county, but his attorneys were all in the court, and when specifically intex’rogated concerning the case by the court, x’efused to appear or answer in any way for their client. During the several terras of the district court of Sumner county, held since the filing of the information, the petitioner has not announced himself ready for trial at any of *105the terms thereof. He has not seemed anxious for any hearing. of the case against him upon its merits, but has only desired a discharge, without any. trial.
The petitioner will be remanded.
All the Justices concurring.