¶1Upon a charge of murder and pursuant to a preliminary examination had before a justice of the peace of Geneva county, petitioner was, on August 11th, 1902, committed to the custody of the sheriff, who now holds him in jail under a mittimus bearing the date mentioned and commanding that the petitioner be detained until legally discharged. The term for holding the circuit court of that county which followed next after the commitment, was fixed by law to begin on the 13th day of October, 1902. The testimony taken on the trial of this case, as set out in the bill of exceptions, is to effect that on the last named day “the sheriff or deputy sheriff called court and made public announcement of the opening of court, that presiding Judge Hubbard was present and immediately after taking his seat in the court room, announced that no term of the court would be held;” that no order of any character was made and no entry of any organization of the court was made on the court records, and no jury, grand or petit, was organ*73ized. On these facts the petitioner bases his application to he released.
¶2In Ex parte Stearnes, 104 Ala. 93, it was held that where one is committed to jail upon preliminary examination to answer for a criminal offense and while he is in custody a regular term of the circuit court is held and adjourned without the finding of an indictment against the prisoner and without making any order continuing the cause for investigation, the prisoner is entitled to be discharged. This case differs from that of Ex parte Stearnes in that here there was no court to take action on the petitioner’s case either by way of investigaton of the charge or of continuing the matter for investigation. The testimony above referred to shows,' not that the court was held and afterwards adjourned, but that it ivas never convened. The lapse of a term without convention of the court.does not work a discontinuance of a criminal prosecution.—Ex parte Driver, 51 Ala. 41. The principle applies to a prosecution pending as this was to await the action of the grand jury in the circuit court.
¶3The probate judge did not err in remanding the prisoner, and his judgment will be affirmed.