¶1delivered the opinion of the court.
¶2The defendant stands indicted in the Circuit Court of Cole county, for murder. A jury was empanneled to try the case, and, without the consent of the defendant, and before the end .of the term, they were discharged by the court, and the cause *383continued. At a subsequent term, the defendant endeavored to avail himself of the act of the court in discharging the jury by a special plea, setting up the fact as a bar to all further prosecution of the indictment. To this plea, there was a demurrer, which was sustained. A motion was made to discharge defendant, which was overruled. Again, a jury was empanneled to try the case, and after hearing the evidence and retiring from the bar to consider of their verdict, they were discharged by the court before the end of the term, and without the consent of the defendant, because of the sickness of one of the jurors. The defendant again moved to be discharged, and the motion was overruled, and the cause now stands continued in the Circuit Court. The defendant has sued out his writ of error, in order to have the action of the court on his motions for discharge and his special pleas reviewed by this court.
¶3