¶1{dissenting). — Prom a conviction of murder in the second degree the defendant has appealed to this court.
¶2The defendant shot and killed Charles E. Lael on the night of April 9, 1892, in the city of Poplar Bluff in Butler county, Missouri. At the May term, 1892, of the circuit court of Butler county, the grand *209jury returned into open court an indictment charging defendant with murder in the first degree, of said Charles E. Laél. The defendant is the son of Hon. John GK Wear, who was the judge of the circuit court of Butler county, at the time of the homicide, and ever since has been and is now, the judge of said circuit.
¶3During the November term, 1892, Judge Wear being disqualified by his relationship to the defendant, it was necessary to provide for a judge to hold said court and thereupon R. F. Scott, Esq., the prosecuting attorney, and the defendant, entered into- a written agreement that H. N. Phillips, a member of the bar, should act as special judge to try said cause as provided by section 4177, Revised Statutes 1889. Mr. Phillips appeared, took the oath of office as special judge, and made several orders, but afterward refused to act further and thereupon the prosecuting attorney, Mr. Scott, and defendant entered into a new agreement, selecting T. H. Mauldin, a member of the bar, as special judge.
¶4Mr. Mauldin heard an application for change of venue filed by the defendant and granted a change to Dunklin county, and admitted the defendant to bail in the sum of $10,000. At the January term, 1893, the cause was docketed in the Dunklin court, but the record is silent as to any disposition made of this cause at said term. At the July term, 1893, of the Dunklin circuit court, the following entry of record appears:
“State of Missouri v.Chas. Wear, 646.
“This cause coming on to be'heard and the judge of this court Hon. John GK Wear being related to the defendant and incompetent to sit in the cause as judge, he vacated the bench, and Hon. T. H. Mauldin, having *210been heretofore elected special judge to try the cause, assumes the bench, and come the attorneys for the State and the defendant in person as well as by his attorneys, and by agreement of the parties this causéis continued generally.”
¶5At the January term, 1894, the following entry appears of record in said court:
“State of Missouri vs. Chas. Wear, 1646.
“This cause being called and Judge Wear, being disqualified to sit in the same by reason of his being related to the defendant, vacates the bench, and Hon. T. H. Mauldin, heretofore elected as special judge to try the cause, assumes the bench, and now comes the attorney for the State and files his motion asking that the cause be nolle prosequied, and the court after hearing the argument of counsel for both plaintiff and defendant, and after duly considering the premises doth overrule said motion, to which ruling the attorney for the State at the time excepts; and also comes'the attorney for the State and files his motion asking a forfeiture of recognizance herein. The defendant is called upon his recognizance, and now the attorney for the State, having moved the court to reinstate this cause upon the docket, does by leave of the court withdraw said motion to reinstate, and the motion to take forfeiture upon defendant’s recognizance is taken up, and the court after hearing argument of counsel for plaintiff and defendant and after due consideration of the premises herein, doth order that the same be and it is overruled, to which ruling the attorney for the State at the time excepted.” At the July term, 1894, no order was made in this cause, as appears by the records of said court.
¶6*211At the January term, 1895, the following entry appears of record:
“State of Missouri, vs. “Charles Wear.
“Indictment for murder in the first degree.
“This cause coming on to be heard and Judge Wear, being disqualified to sit as judge herein vacates the bench, and Hon. T. H. Mauldin, special judge in this cause, assumes the bench. And now comes the prosecuting attorney for the State, and this cause is continued at instance of the State at its cost.”
¶7“Comes now the defendant in his own proper person and by his attorneys and files in this court his motion to be discharged from the indictment and the charge therein contained, which motion is as follows, to wit:
“ ‘The State of Missouri against “Charles Wear.
“‘In the circuit court, January term, 1895. Indictment for murder.
“ ‘motion to discharge dependant.
“ ‘The defendant comes in his own proper person as well as by attorney and moves the court to discharge him from said indictment for murder in the first degree for the killing of Charles E. Lael, for which he was indicted on the fifth day of May, 1892, and the offense therein charged, for the following reasons: Because said defendant has not been bi’ought to trial before the third term of the said circuit court of Dunklin county, in which said cause is pending, after the removal of said cause by change of venue to said Dunklin county circuit court from the circuit court of Butler county, this State.
*212“ ‘And this defendant states that the delay in bringing said cause to trial did not happen on his application but on the application of the State. He further states that the delay in bringing defendant to trial has not been occasioned by the want of time to try said cause at said third term of this court nor for want of time to try said cause at any prior term thereof. ’
“Said motion being taken up by the court for adjudication and decision, and the State of Missouri appearing by W. E. Renfroe, prosecuting attorney of Butler county, Missouri, and the defendant in his own proper person and by his attorneys, and all and singular the matters and things stated in said motion being submitted to the court, the court doth find the statements therein contained to be true, that is to say, that said defendant Charles E. Wear has not been brought to trial before the end of the third term of said court of Dunklin county, in which said cause is pending after the indictment in this cause was preferred and after the removal of said cause from the circuit court of Butler county to this count, and the court doth further find that the delay in bringing said defendant to trial did not happen on defendant’s application, but at the instance and on the application of the State, and that said delay was not occasioned by the want of time on the part of this court to try said cause at the third term or any prior term of said court.
“Now, therefore, the premises considered, it is ordered, adjudged and decreed by the court, that the defendant be and he is hereby released and discharged from said indictment and from the offense therein charged, and that he go hence thereof without day.”
¶8At the November term, 1894, of the Butler circuit court a new indictment for murder in the first degree was preferred by the grand jury of Butler county, and was filed February 25, 1895, during the same term.
¶9*213On April 8,1895, Judge Wear entered his order of record requesting Judge Henry Riley of the twenty-eighth circuit to hold the Butler court in such cases as Judge Wear was disqualified, and adjourned the court to May 4, 1895, for that purpose.
¶10The regularity of the call of Judge Riley and his right to hold said court was affirmed by this court, In Banc, in State ex rel. v. Wear, 129 Mo. 619.
¶11Judge Riley caused process to issue and the defendant Charles Wear was apprehended. On January 26, 1896, the circuit court of Butler county, being regularly convened and defendant in custody, he filed his plea to the jurisdiction of Judge Riley which was overruled. The defendant then waived formal arraignment and pleaded not guilty. He then applied for a change of venue from Judge Riley which was denied.
¶12On January 21, the defendant filed his plea in bar, that he had been discharged from said offense by Special Judge Mauldin, as above set out, which plea was overruled by the court. A continuance was granted defendant until February 17, 1896, at which time defendant asked to have the cause certified to Special Judge Mauldin, and this was denied. Thereupon the court ordered the cause to proceed. An affidavit was filed against the sheriff by the prosecuting attorney, and the court sustained the application, and the coroner of the county was appointed elisor to summon a jury, who appointed his deputy. A motion to quash the panel was overruled. The jury heard the evidence and instructions of the court, and returned a verdict of guilty of murder in the second degree, and assessed his punishment at thirty-five years in the penitentiary. After motions for new trial and in arrest the defendant was duly sentenced.
¶13From that sentence he appeals to this court.
¶14Unable to concur in the very able opinion of my *214brethren, I respectfully submit my reasons for not so ■doing.
¶15I. The all-important question which has arisen upon this record is, not so much what error may have ■occurred in the trial of defendant before Judge Riley, but whether the circuit court erred in asserting the right to try him at all. It is at once apparent that our decision must be fraught with grave consequences whatever it may be. If it be held that the circuit court had no power to try defendant then there is room for the assertion that an offense of the gravest character has not only not been punished, but the offender has never even been put in jeopardy therefor. On the other hand, we are admonished to proceed with the greatest care lest we break down one of the inestimable safeguards of human liberty. From either point of view, it demands most thoughtful consideration. The right of all persons, arrested upon a criminal accusation, to “a speedy public trial,” is declared in the constitutions and bills of rights in all, or nearly all, of the States of our Union, and in the Sixth Amendment of the Constitution of the United States it is declared that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed,” etc. The character of the plea in bar to the present prosecution is of the first importance. Scanning it closely it will be seen that it is neither a plea of autre fois acquit, or convict, nor is it a plea of former jeopardy, but is a plea of a statutory discharge by the circuit court of Dunklin county for laches in the prosecution of another case for this same crime under a former indictment. The issue tendered in this court is the sufficiency of the plea and the record evidence offered by defendant in support thereof, rather than the effect of a judgment in a collateral proceeding. The burden *215was upon defendant to establish by the record of theDunklin court his statutory exemption and immunity from a trial for the offense charged in the indictment, and it is that plea and the record evidence offered on that isssue that we have to first consider. Based upon a statute, it must stand or fall accordingly as it meets the requirements of that statute. It is essential then to determine, first, whether defendant pleads facts which authorized the Dunklin county circuit court to discharge him; second, the legal effect of such a discharge if without the, authority of law. The plea is somewhat novel in its nature.
¶16As already said it does not rest upon that universal law of reason and justice embodied in our national and state constitutions that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” but is founded upon that other declaration, in our bill of rights that “in criminal prosecutions the accused shall have the right of a speedy public trial by an impartial jury of the county.” Many expositions of this constitutional guaranty can be found in the official reports of the different states of the Union. In Nixon v. The State, 2 Sm. & M. (Miss.) 507; s. c., 41 Am. Dec. 601, it was said: “Delays growing out of the established mode of proceeding, which has been so established by law equally for the protection of the accused and to accomplish the design of the scheme of laws, are evils necessarily attendant upon all human systems of jurisprudence. They are evils to which all may be subjected alike and which constitute a part of the price paid for the advantages, far greater in proportion, thereby derived. By a speedy trial is then intended, a trial conducted according to fixed rules, regulations and proceedings of law, free from vexations, capricious and oppressive delays, manufactured by the ministers of justice.” And it is perhaps as well expressed *216in Ex parte Stanley, 4 Nev. 116, as anywhere. The court in that case says: “But what is to be understood by a speedy trial, is the embarrassing question now to be determined. It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or of the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, whilst it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence, or exertion from the courts, or the representatives of the State; nor does it contemplate that the right of a speedy trial which it guarantees to the prisoner shall operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals.”
¶17The statute of Missouri, under which defendant claims exemption from punishment for the offense of which he was convicted is known as section 4223, Revised Statutes 1889, and is in these words: “If any person indicted 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, he shall be entitled to be discharged so far as relates to such offense, unless the delay happened on his applica*217tion, or be occasioned by the want of time to try such cause at such third term.”
¶18This section and sections 4222 and 4224 were in the same language in the revision of 1879, section 1923, and General Statutes 1865, section 28, chapter 213, page 851, and Revised Statutes 1855, section 29, page 1194, Revised Statutes 1845, section 26, chapter 139, page 882. The words “or be occasioned by the want of time to try such cause at such third term” were inserted by an amendment February 13,1839, to the twenty-fourth section of the sixth article of “An Act to regulate criminal proceedings” approved March 21, 1835. (R. S. 1835, sections 24 and 25, page 491.) Laws of Missouri 1838 and 39, page 98.
¶19These provisions of our statute had their origin in the Habeas Corpus Act, and are to be found prior to 1835 in Laws of Missouri 1825,1st volume, page 424, section 11, and Missouri Territorial Laws 1804-24, chapter 127, section 4, page 353. In the said Habeas Corpus Act the language is “the prisoner shall be set at liberty by the court”.instead of “discharged so far as relates to such offense.”
¶20In State v. Huting, 21 Mo. 464, this court construed the twenty-fifth section of the sixth article of the act concerning practice and proceedings in criminal cases, Revised Statutes 1845, the said section being identical with section 4222, Revised Statutes 1889, and the same as section 4223, Revised Statutes 1889, save that when the prisoner is on bail the third term must elapse before he is entitled to his discharge. It was then held that in considering whether a prisoner is entitled to a discharge under the section above referred to, “a term which lapses, or which is adjourned in the midst of a trial by reason of the illness of a judge, is not to be counted; nor is a term, at which there was a trial and a failure of the jury to agree, to be counted, the Consti*218tution authorizing a continuance in such a ease; nor is a term which by law is limited to six days to be counted, where on the fourth day the case was continued because up to that time only five jurors had been impaneled; nor are special terms to be counted. The statute was only intended to operate when there is some laches on the part of the State.”
¶21Again in State v. Cox, 65 Mo. 29, this court held that where a change of venue is taken by a defendant in a criminal case, he was not entitled to a discharge as for want of prosecution, under sections 27, 28, and 29, Wagner’s Statutes 1872, page 1.105, if tried at the second term of the court in the county to which the change was awarded after the filing of the transcript in such county.
¶22Likewise it has been ruled upon a similar statute by the supreme court of Mississippi that the prisoner is not entitled to his discharge merely because the time designated for holding the two terms of court had elapsed, but it must appear that two terms at which courts were actually holden had elapsed. Byrd v. State, 1 How. (Miss.) 163. The same interpretation was given to a statute similar in all substantial respects in South Carolina. State v. Spergen, 1 McCord, 563. So also in Virginia. Ex parte Santee, 2 Va. Cas. 363; Vance v. Com., 2 Va. Cases, 162; People v. Camilo, 69 Cal. 540.
¶23The statute law of Ohio is the same as our own on this subject. In Ex parte McGehan, 22 Ohio St. 442, a party under indictment and on bail sought a discharge by virtue of section 161 of the code of criminal procedure of that State, which is identical with our section 4222, Revised Statutes 1889. But said the Supreme Court of Ohio through its chief justice: “There are two good reasons in our judgment why this application should be, refused. The first of these is that McGehan did not make any application for his discharge, or ask for a *219trial at the November term, 1871, of the Preble court, which is claimed to be the second term intervening after the finding of the indictment within the meaning of section 161 of _ the code. That section provides, that if the prisoner is not ‘brought to trial’ before the end of the second term of the court held after the indictment is found, ‘he shall be entitled to be discharged, so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.’ This section standing cdone would seem to give the prisoner the right to be discharged at any time after the end of the second term loithout any action on his part during that term and simply for the non-action on the part of the State in failing to bring him to trial. But this section must he construed in connection %vith section 163. That section provides that ‘when an application is made’ by the prisoner for his discharge under section 161 (or under section 162) if the court ‘shall be satisfied there is material evidence on the part of the State which can not be had; that reasonable exertions have been made to procure the same, and that there is a just ground to believe that such evidence can be had at the succeeding term, the cause may be continued and the prisoner remanded or admitted to bail as the case may require.’ In the light of both these sections it is quite evident that an ‘application’ by defendant during the term, at the end of which he is entitled to his discharge, is contemplated. It is only ‘when application is made for discharge’ that the State has a right to continue for the causes specified in section 163. Non constat, but that if the application had been made at the November term, 1871, the State could and would have shown cause for continuance. For aught that appears the very reason why application was not made at that time, was that the’State should show good cause for continu*220anee. No application was made till the February term, 1872, and then the State was relieved from the necessity of showing cause for continuance, for the reason that the prisoner had the cause continued on his own motion. From the record we are bownd to presume that the cause ivas continued at the November term by consent of parties or at least without objection, and there is nothing to show that the prisoner, in any form, made known to the court that he insisted on being either discharged or tried at that term which we think should appear in order to entitle him to a discharge under the statute.”
¶24Now section 4224, Revised Statutes of Missouri 1889, is exactly like section 163 of the criminal code of Ohio quoted bythe supreme court in its decision. It is in these words: “If, when application is made for discharge of a defendant under either of the last two sections (to wit, secs. 4222 and 4223) the court shall be satisfied there is material evidence on the part of the State which can not then be 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 be continued to the next term, and the prisoner remanded or admitted to bail, as the case may require. If the defendant shall not be tried before the end of the term last mentioned, the State shall not be entitled to any further continuance of the ease and the prisoner shall, if he require it, be discharged.”
¶25In Hernandez v. The State, 4 Texas Court of Appeals, 425, under a constitutional provision like ours, it was ruled that a prisoner who has never demanded or been refused a trial', was not entitled to a discharge. Indeed the general weight of authority and sound reason concur in holding that, to entitle a prisoner to discharge under sections 4222 and 4223, Revised Statutes 1889, and similar statutes, the laches must have been *221on the part of the State through its prosecuting officers (State v. Marshall, 115 Mo. 383), and not a failure to try him caused by disagreement of a jury, sickness of the judge or juror, or want of time during the term to try the case, or delay caused by and with the consent of the defendant himself, and when on bail he must demand a trial or resist postponements of his case. Gallagher v. People, 88 Ill. 335; Patterson v. State, 49 N. J. L. 326. These beneficent provisions of these various statutes were enacted to promote justice and protect the innocent, and not as a shield for the guilty and lawless. Our own law, like that of many of our sister states, provides that when the defendant is on bail (as was the defendant in this case) he is not entitled to a discharge even at the third term, if the State can show the statutory cause for a continuance. What then of this plea? Is it not evident that it is too narrow in that it fails to negative the fact that the causé had not been continued at the third term by the court upon one of the grounds allowed by th^ statute? Most clearly under no construction of sections 4222, 4223 and 4224, Revised Statutes 1889, was the defendant entitled to a discharge at the third term if the State had procured a continuance for one of the causes alleged, and the record produced by defendant to sustain his plea shows that prior to demanding his discharge and indeed toe may say as a basis of it, the court had already continued the cause until the next term. No objection whatever was made to that continuance by the defendant at the time, and it seems to us that invoking the universal practice in this court we are bound to presume that the special judge, knowing that the cause could only be continued without the consent of defendant for certain specified reasons, he granted the continuance upon one of said grounds; in other words, in the absence of evidence to the contrary, that he obeyed *222the law rather than violated it. This presumption obtains as to all official actions, and nowhere stronger than in sustaining the judgments of courts of general jurisdiction. In the light of this record it seems to us that the application was obviously insufficient in the Dunklin circuit court in that while it asserted the cause had been delayed for three terms, it did not aver that the continuance at the third term was not for good statutory cause as provided in section 4224, and that the plea in bar in the Butler circuit court to the present indictment was likewise insufficient, and the record read to sustain it shows that the Dunklin court had continued the case for a presumably lawful cause, and hence defendant did not sustain his right to a discharge, and this presumption was indulged by this court in Ex parte Donaldson, 44 Mo. 149, and by the Supreme Court of Ohio in Ex parte McGehan, 22 Ohio St. 442, and by this court in State v. Marshall, 115 Mo. 383, and State v. Steen, 115 Mo. 474.
¶26Let us consider somewhat more in detail whether at the January term, 1895, of the Dunklin circuit court, the defendant was entitled to his discharge for laches on the part of the prosecution, under the record evidence offered. He was indicted at the May term, 1892, of the Butler court. In the computation of time or terms, for the lapse of which defendant had a right to demand a discharge, the term at which the indictment is found is not to be counted. This was so ruled in State v. Robinson, 12 Mo., marginal page 592, top page 390, and that ruling has never been disturbed.
¶27The nest term in Butler county was held as required by law in November, 1892. At that term a special judge was selected by agreement of defendant and prosecuting attorney, and a change of venue was awarded to Dunklin county on the application of defendant and defendant admitted to bail, to appear in the Dunklin court.
¶28*223Up to this time clearly no laches appear on the part of the State.
¶29At the January term, 1893, of the Dunklin court the cause appeared on the docket, but no action whatever was taken in this cause. It does not appear that the special judge put in his appearance at said court. No court having been held by Special Judge Mauldinat said January term, it is plain that no laches can be charged to the State at that term.
¶30At the July term, 1893, of the Dunklin court the special judge assumed his duties and the then prosecuting attorney of Butler county and defendant in his proper person, attended by his counsel, appeared in ■open court and the record states that “by agreement of the parties this catise is continued generally.” Clearly no default occurred on the part of the State up to that time.
¶31By the act redistricting the State into judical circuits and fixing the terms of courts therein, approved April 7,1892, the terms of the circuit court of Dunklin county were directed to be held on the second Mondays in January and July of each year. So that, the next term of the Dunklin court after this cause was licontinued generally,” by consent, would have occurred on the second Monday in January, 1894. At that term it appears from the entry of record that the prosecuting attorney of Butler county alone appeared in the Dunklin court, and moved the court to reinstate the case on the docket, and permit him to enter a nolle prosequi, but the court refused to permit him to do so. The prosecuting attorney then demanded a forfeiture of the defendant’s recognizance, and it was refused. The prosecuting attorney then withdrew his motion to reinstate the case on the docket. This action of the court was doubtless based on the established practice in some of the circuits in this State in criminal cases, that when a *224cause is “continued generally,” it is dropped from the docket, and neither party is required to appear in the canse until the cause is reinstated, of which action the opposite side is entitled to notice.' So well established is this practice that while ordinarily the clerk is not required to certify a fee bill in a criminal case until the case has been finally determined, yet when a case is “continued generally” he is required to tax the costs, and certify the same. R. S. 1889, sec. 4411. This cause having been “continued generally” at the July term, 1893, by the agreement of the defendant and the prosecuting attorney, the defendant in the absence of notice of the motion to reinstate at the January term, 1894, was not required by the terms of his recognizance to appear at the said term, as, from the motion to reinstate, it had evidently been omitted from the docket, and hence the court might properly refuse to forfeit the recognizance.
¶32But while this is true it is just as true that where the said practice obtains in this State in criminal eases, the State likewise is under no obligations to appear at said term, and a failure to do so is not laches. The appearance of the prosecuting attorney to demand that a nolle prosequi be entered was in no sense a failure to prosecute, as the case was clearly not on the docket for hearing at said term, and he had an absolute right, before a jury %vas impaneled, to do that without the consent of the defendant, or the court, in the absence of a statutory provision limiting his common law prerogative. Regina v. Allen, 1 Best & S. 850; s. c., 9 Cox C. C. 120; Com. v. Smith, 98 Mass. 10; Com. v. Scott, 121 Mass. 33; State v. Tufts, 56 N. H. 137; Lacey v. State, 58 Ala. 385; State v. Hickling, 45 N. J. L. 152; Clarke v. State, 23 Miss. 261; U. S. v. Shoemaker, 2 McLean, 114; S'ate v. Hornsby, 8 Rob. (La.) 583; State ex rel. Butler v. *225Moise, 48 La. Ann. 109; s. c., 35 L. R. A. 701. So that no laches as yet appears in the history of this cause.
¶33At the July term, 1894, no action whatever was taken in the cause, and it was as if no court was held so far as this case was concerned, and upon either of three well settled, grounds, the State could not be charged with a failure to prosecute at said term: First, because the cause, having been “continued generally,” and not having been reinstated, it was not required of either the State or defendant to appear, and hence no default in not appearing; second, as no record was made in the cause, it must be presumed that the special judge for good cause was not present to hold the court, and no failure of the judge to hold said court can be charged as laches on the part of the State; or, third, the defendant had not appeared as • required by his bond, and no step could be taken in his absence except a forfeiture. There is no evidence that the defendant ivas present at said term of court, and there is no averment that he was, in Ms plea in bar.
¶34The next and last term in Dunklin county, to wit, January term, 1895', shows the only continuance at the instance and cost of the State.
¶35With these facts, all affirmatively appearing by the record of the court in which he was presiding, the special judge made a finding at that term “that said defendant Charles E. Wear has not been brought to trial before the end of the third term of said' coui’t. of Dunklin county, after the indictment was preferred, and after the cause was removed from Butler county to the Dunklin county circuit court, and that the delay did not happen on defendant’s application, but at the instance and on the application of the State, and that said delay was not occasioned by the want of time on the part of the court to try said cause at the third term, or any prior term.”
¶36*226This finding is contradicted by the record made under the eye, and presumably by the direction, of the special judge who made it. Courts of record only speak by their records. The circuit court is a court of record, and is required by statute to keep just and faithful records of its proceedings. R. S. 1889, sec. 3225; Maupin v. Franklin Co., 67 Mo. 327; Johnson Co. v. Wood, 84 Mo. 489.
¶37The continuance of a cause is an important proceeding by a court in any case, especially in a felony case, and the action of the court in ordering a continuance can only appear by its record entry, if affirmative action is taken by it, or by its failure to make any entry at all, if no action was taken, but it is utterly incompetent to prove the terms upon which a continuance was granted, and upon whose application it was made, by verbal testimony. What was done must appear by the record, and that record can not be impeached by parol, but can only be contradicted by its own recitals. Recognizing to the fullest extent that the rulings and acts of a special judge as such are entitled to the same credit that would be accorded to a regular judge of said court, we hold that the judgment of a court presided over by a regular judge may be impeached by its own record.
¶38Thus in Cloud v. Inhabitants of Pierce City, 86 Mo. 357, there was a recital that the defendant had been duly served with process but when the service was produced it proved to be worthless, andthis court held the judgment void and a nullity. To the same effect are Milner v. Shipley, 94 Mo. 106; Crow v. Meyersieck, 88 Mo. 411, and Bell v. Brinkmann, 123 Mo. 270. So that even a court of the great powers and general jurisdiction of our circuit court can not contradict its own solemn utterances and demand that a record so made shall be conclusive upon other courts.
¶39*227In this case no move conclusive record evidence could be produced than that furnished by the record of the circuit court of Dunklin county, showing affirmatively that as a matter of fact, the State hacl applied for and obtained but one continuance in the case of State v. Wear.
¶40But we are met at this point with the serious question that Special Judge Mauldin had the power to discharge the defendant, and it is immaterial that in so doing he was guilty of an arbitrary exercise of the judicial power with which he was clothed. The power to grant pardons and reprieves is vested by the organic law of Missouri in the Governor alone, and then only after conviction. ' Sec. 8, art. V, Const. of Mo. 1875.
¶41But if the practice.in this case can be sustained, a judge of the circuit court, or other criminal court of this State having jurisdiction in prosecutions for felony, may virtually grant a defendant a pardon by discharging him before he has ever been placed in jeopardy of life or limb or liberty, and before the State has had a reasonable opportunity of bringing him to trial, and may disregard its own record and its own recitals to the contrary, and find that a prisoner or defendant has been unjustly denied a trial for three terms, and discharge him, and every other court and authority in the State is powerless forever afterward to interfere however heinous the crime, or evident the guilt of the defendant. I say it may do so even at the first term, if the contention be sound, because the jurisdiction is vested then as well as later, and no greater wrong is done by so finding in defiance of its record, at its first term, than is committed when as in this case it finds at a third term that the delay was caused by the State when its own record affirmatively shoivs the contrary. Conceding every presumption in favor of the jurisdic*228tion of the court when the contrary does not appear from its own record, it does seem to ns it can not be upheld when the facts upon which the law confers the power to discharge the prisoner are negatived upon its own record, and the party who procured that same record to be made, is invoking it as a protection. Unquestionably, as the circuit court had the power under some circumstances to discharge the prisoner, I agree that in a collateral proceeding the judgment or order of the court can not be impeached by evidence aliunde its own record, but when the record of the court itself discloses affirmatively all the evidence upon which the court could find the facts which would justify a discharge, and that evidence is known to the party who induces the court to make such an order, and he knows that the court can not consistently with such evidence lawfully render such judgment, or make such order, then all presumption in favor of such discharge is repelled, and if the facts of record upon which it is based, show it was entered without the sanction of and in defiance of the law, it must be held nugatory.
¶42In Ex parte Donaldson, 44 Mo. 154, the defendant had demanded his discharge after the cause had been continued, but the court said: ‘‘Every inference is to be made in support of its rulings and we are bound to believe that the facts existed which, according to laic, justified the continuance. It is true, a motion was subsequently made during the same term to discharge the accused, but there is no evidence before us that the continuance was set aside, and without that being done the court had no power to act on the motion.” State v. Marshall, 115 Mo. 383; State v. Steen, 115 Mo. 474. Upon this record it appears beyond the cavil of a doubt that immediately preceding this application for a discharge this cause had been continued, the presumption being that it was for a lawful cause. Then, *229without setting aside that continuance, and without finding that it had been improvidently granted for other than the statutory causes enumerated in section 4224, the court attempted to discharge the prisoner. Did this order have that effect under the circumstances? While a court may set aside a continuance during the term, it is never done without reasonable notice to the party at whose instance it was granted. Any other practice would be palpably unjust. The general rule of law is that the order of continuance until set aside, precludes and postpones further action in the cause until the order has expired, save as to collateral matters. The order in the Dunklin court made for a discharge, directly impugned the order of continuance previously entered of record, and should be held to have been out of the power of the court, as was held in Donaldson’s case, 44 Mo. 149, and for the more satisfactory reason that it leaves nothing for presumption in its favor, but rests upon the inconclusive and insufficient finding that the continuances had been granted on the application of the State, whereas the State according to the positive statute was entitled to a fourth term upon a proper showing for a continuance, and that continuance had been granted. So that, conceding everything to the discharge pleaded and proven, it did not establish that immunity from the prosecution for which it was offered. The burden, as already said, was on defendant and he has failed to sustain it and the State has established “nul tiel record.” The pretended discharge was without the sanction of law and should be held to present no obstacle to a lawful trial for the offense charged. The effect of a record must be gathered from the whole 'record, not a partial extract, because the partial extract may bear a very different import from the whole taken together. Nor can one part be ascribed any greater importance or *230sanctity than other portions of the same. Philipson v. Bates, 2 Mo. 95. We can not agree that any magistrate, high or low, may thus make a recital of record which contradicts all other parts of his record in the same case, and that it shall be accorded the same respect that judgments founded upon law and evidence are accorded by the courts. We think the circuit court correctly held that the plea was not sustained by the record by which alone it could be made good.
¶43An examination of the other assignments discloses no reversible error and in my opinion the judgment should be affirmed.