At the April term, 1890, of the Ozark circuit court, the defendant was indicted for feloniously, willfully, on purpose and of his malice aforethought, shooting one John McCourtney with a rifle gun with intent to kill.
At the October term, 1890, and again at the April term, 1891, the cause was continued by the state.
The evidence shows that on the tenth day of January, 1890, while J. C. Miller and John McCourtney were sawing logs in Ozark county, Missouri, McCourtney was shot from ambush. Miller testified that he saw defendant running’ away from the smoke of the rifle. About the time of the shooting defendant left the *387neighborhood, was gone about three and one half months, when he returned and gave himself up to the sheriff. It was shown by one witness that defendant had stated before the shooting that if any man took his claim it would never do him any good. At the time McCourtney was shot he and Miller were sawing on a board tree which the evidence tends to show was on defendant’s claim. Defendant undertook'to account for his disappearance about the time of the shooting, but he is not corroborated in any of his statements in this regard by any other witness. He established a good character for being a peaceful and law-abiding citizen.
Upon the trial defendant was found guilty and his punishment assessed at three years imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest defendant appeals.
I. It is contended that as defendant was not brought to trial before the end of the third term after the finding of the indictment, and the delay not being on his application, or for want of time to try the case, he was entitled to his discharge. After defendant’s arrest he gave bond for his appearance at the next term of the circuit court of Ozark county, which was renewed from time to time until the case was finally tried. Section 4223, Revised Statutes, 1889, provides that, “If any person indicted for any offense, and held to answer on bail, should not be brought to trial before the end of the third term of the court in which the ease is pending which shall be held 'after such indictment found, 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. ”
In the case of State v. Huting, 21 Mo. 464, this court in passing upon a similar motion held, “That the *388statute was intended to operate only when there is some laches on the part of the state.” In the case at bar the last and third continuance was by the court of its own motion, and it cannot be said that the state was in any manner responsible for this continuance or that laches can be attributed to it on account thereof.
In the absence of proof to the contrary it must be presumed that the continuance was ordered on some one of the grounds provided for by statute, for instance, the want of time to try the cause at that term. Every reasonable presumption must .be indulged in favor of the action of the- trial court, and nothing appearing to overcome such presumption in this case we conclude that the court properly overruled the motion for defendant’s discharge.
II. The court'instructed the jury that, “if they believed from the evidence that immediately after the shooting the defendant fled from the country, then the jury may take such fact into consideration in arriving at his guilt.” This instruction is not in line with the rulings of this court. Unless the defendant fled from the country to avoid arrest, the fact that he did leave is no evidence of his guilt, and as the instruction ignores the defendant’s intention and. purpose in leaving .the country it was not authorized by the authorities on the subject. State v. Baker, 19 St. Rep. 22; State v. Brooks, 92 Mo. 542; State v. King, 78 Mo. 555; State v. Walker, 98 Mo. 95.
v For the errors herein indicated, which we regard as material, the judgment is reversed and the cause remanded.
All concur.