Bay, Brevakd, and Wilds, Justices, were of opinion the prisoner was intitled to his discharge. The conviction on one indictment did not prevent the State from proceeding on the other. The prisoner demanded his trial in both cases, and he ought to have been tried at the second court, after demanding his trial on both indictments, or discharged as to the indictment not proceeded on. The Solicitor, and the court, should not have calculated on his suffering death on the conviction in the case, tried.
A new trial might have been granted, and the prisoner admitted to bail, or judgment might have been arrested, or (as it happened) there might be a prospect of his being pardoned. To keep him in confinement under these circumstances, would be contrary to the spirit and intention of the habeas corpus act. Waties, and Trezevant, Justices, contra. It was unnecessary, after conviction on one indictment, to proceed on the other. The prisoner was pardoned at his own instance ; the same as if he had escaped, &c. Motion granted.