stolen goods in any part of the United Kingdom, and taking them into another part, was indictable for larceny as having been committed in that part of the kingdom where he had the goods in possession. Archb. Cr. Pl., ib. And though the rules of criminal pleading are held with as much strictness in England as in this country, and the accused is equally entitled there to be informed, with all proper certainty, of the nature and cause of the charge against him, as he is here, it has never been held there that such indictments are defective, or that they will not be sustained by evidence of the original taking in one county or part of the kingdom, and a carrying away into another place. It appears to me to be impossible to distinguish these cases in principle from that before us with reference to the point under consideration.

And the same rule has been sanctioned in this country whenever statutes similar to ours have been passed, and have become the subject of judicial decision. In New York, Missouri, and Alabama, statutes containing the same provisions as ours, and nearly in the same language, have been pronounced constitutional by their supreme courts, and indictments framed like the one in this case have been sustained, and convictions under them affirmed. The People v. Barker, 11 Wend., 129; Hemmaker v. State, 12 Missouri, 454; The State v. Seay, 3 Stewart (Ala.), 123; Murray v. State, 18 Ala., 727.

I am, therefore, of opinion that the indictment in this case is well framed to embrace the case made out by the evidence, and that it was competent to show, by evidence, that the slave was stolen in Arkansas, and found in the possession of the plaintiff in error in this state.

JENKINS V. STATE, 33 Miss. R., p. 382.

SHERIFF.

Judgment nisi against a sheriff for failing to return a bench warrant is void if entered without notice.

In error from the circuit court of Madison county. HENRY, J.

Gibbs and Wilkinson, for plaintiff in error.

D. C. Glenn, attorney general.

HANDY, J.:

It appears by the record that at the April term of Madison circuit court, 1856, a motion was made in behalf of the state for a fine against the plaintiff in error, sheriff of Yazoo county, for failing to make return of certain bench warrants to the April term, 1855, issued upon an indictment in that court, and made returnable to that term of the court. A judgment nisi, &c., was rendered upon the motion, and a scire facias was issued thereupon, to which the plaintiff in error appeared and pleaded, among other things, that no notice whatever was given to him of the motion against him.

The record contains nothing showing that notice was given, nor does the judgment nisi, &c., show that it appeared to the court that any notice of the motion was given to the sheriff. In this state of the case it was submitted to the court upon the above plea with other pleas, and a judgment final was awarded upon the scire facias.

This judgment was manifestly erroneous. The statute upon which the proceeding was founded, expressly requires that the fine shall be entered upon "reasonable notice being first given to the sheriff." The record should have shown that such notice was given of the motion either by written notice executed and returned, or by his appearance to the motion, or by statement in the record of the judgment nisi, that it appeared to the court that due notice was given. And without such evidence of notice, the judgment on this plea to the scire facias should have been for the defendant below.

The judgment is reversed, and a judgment ordered for the defendant on the scire facias.

OGLE V. STATE, 33 Miss. R., 383.

HOMICIDE.

Applications for continuance are always addressed to the sound discretion of the court; and it is only where this discretion has been greatly abused that it can be assigned for error.

An affidavit that subpoenas had been issued for absent material witness which were "not executed" by the sheriff, and that he expected to prove by such witnesses an unfriendly feeling between the deceased and the defendant, is insufficient for a contin

uance.

A person who has not formed or expressed an opinion as to the guilt or innocence of the prisoner who is indicted for murder, but has an impression on his mind, formed from rumor, in relation to the killing, which it might require evidence to remove, is competent as a juror. Per SMITH, C. J., and HANDY, J.

But in such case, although the juror may be incompetent, a new trial will not be granted if the prisoner exercises his right of peremptory challenge, unless it be shown that he exhausted his peremptory challenges, and was thereby liable to have other jurors equally objectionable forced upon him. Per FISHER, J.

A verdict of guilty of manslaughter will not be set aside for an error in the court below in refusing to give instructions asked for by the prisoner, the object of which was to reduce the crime from murder to manslaughter.

up

Error to Holmes circuit court. HENRY, J.

At the April term, 1856, of the circuit court of Holmes county, Lewis Ogle was indicted, tried, and convicted of the murder of one W. P. West. A new trial was granted, and at the following October term he was again tried and found guilty of manslaughter in the first degree. At that time the prisoner applied for a continuance on account of the absence of Thomas Gray, by whom he expected to prove, as he stated in his affidavit, that the deceased and the defendant were very unfriendly to within a short time previous to the killing; and also on account of the absence of John Hubbard and John Shiph, by whom he expected to prove that the deceased was exceedingly quarrelsome when drinking; and that the prisoner would prove by other witnesses that deceased was drinking on the day of the killing. The affidavit stated that subpoenas had been issued for these witnesses in due time, and that they were not absent without his consent. The district attorney refused to admit the truth of the facts stated in the affidavit, and the court deeming the application insufficient refused a continuance.

During the empaneling of the jury, one Webster, who had been returned by the sheriff on the special venire, was called, and upon examination touching his qualifications as a juror, he stated "that he had, from rumor, formed some opinion, or rather impression, of the killing, but that he had no opinion then of the guilt or innocence of the prisoner, as he had heard none of the circumstances or evidence." The prisoner's counsel then asked Webster if it would require evidence to remove the

opinion he had formed, to which he replied that it might require evidence to remove his impression as to the killing, but he had no opinion as to the guilt or innocence of the prisoner. The prisoner's counsel then challenged said juror for cause, but the court decided him to be competent, and the prisoner excepted. The prisoner then challenged the juror peremptorily. The prisoner pleaded not guilty, and was found guilty, and he brings the case to this court.

J. W. Wood and R. A. Anderson, for plaintiff in error.
D. C. Glenn, attorney general.

FISHER, J.:

The prisoner was put upon his trial at the October term, 1856, of the circuit court of Holmes county, for the murder of one William P. West, and was by the jury found guilty of manslaughter in the first degree. To have the sentence pronounced upon this verdict, and the proceedings leading thereto, revised by this court, this writ of error has been prosecuted.

It appears that before going into the trial the prisoner moved the court for a continuance on account of the absence of certain witnesses whose testimony he deemed material in his defence. He sets forth in his affidavit that subpoenas for each of said witnesses had been issued, and returned by the sheriff not executed. That he expected to prove by one witness that the prisoner and the deceased were on friendly terms up to the time of the killing, and by another that the deceased was very quarrelsome in his disposition when drinking. Applications of this kind are always addressed to the sound discretion of the court; and it is only where this discretion has been manifestly abused that the action of the court below can be assigned as error.'

Archbold Cr. Pr. & Pl., 566-7-8; State v. Hildreth, 9 Iredell, 429; State v. Patterson, 1 McCord, 177; Green v. State, 13 Mo., 382; Baxter v. People, 3 Gilman, 368; McKinney v. People, 2 ib., 540; State v. Thomas, 8 Rich., 295; Fiott v. Com., 564. But the discretion in such cases cannot override a clear legal right, or dispense with a plain rule of law. The court, therefore, cannot refuse a continuance on the ground that "it does not place much confidence in the truth of the defendant's statements." Fox v. State, 9 Geo., 373. In Alabama and North Carolina it has been held that this discretion of the court cannot be reviewed on error. Lindsay v. State, 15 Ala., 43; State v. Duncan, 6 Iredell, 98. And in Woods v. Young, 4 Cranch, 237, the Circuit Court of the United States for the District of Columbia laid down the same rule generally, and without qualification. It was doubted by the general court of Virginia in

But even under a more liberal application of the rule in the case at bar, we feel no hesitation in saying that the court below committed no error in refusing the continuance. Conceding that proper diligence had been used to compel the attendance of the witnesses, their testimony could not have varied the result. Admitting the truth of the statements of the affidavit, and giving to the facts the greatest weight to which they were entitled in favor of the accused, a mere doubt as to the question of malice could at most have been created on the minds of the jury.

The testimony of itself is too weak to weigh against the positive and direct testimony introduced on the part of the prosecution; and indeed it must depend for its weight more upon the weakness of the testimony of the state than upon any merit of its own. There doubtless may be cases where such testimony might form important links in the chain of evidence, and where it might turn the scale in favor of the accused; but, as already remarked in the present case, it could do no more than to create a doubt as to the question of malice. And thus viewing it, in connection with the evidence of the state, we are compelled to sustain the action of the court below in this respect.1

Smith v. Com., 2 Virg. Cas., 6, though they agreed it was a matter of discretion, and that error would not lie unless the case was a very plain one. The same doubt was expressed in Holt v. Com., ib. 156, and the writ of error denied. Also in Bledsoe v. Com., 6 Rand., 673, 674. In Indiana, in Detro v. Smith, 4 Ind., 200, a large discretion was allowed the circuit court on a question of continuance; but in most of the later cases in that state little has been said about discretion, and the right to a continuance has been generally regarded as a question of law arising upon the statements of the affidavits. Hubbard v. State, 7 Porter, Ind., 160; Fuller v. State, Blackf., 63. In Georgia the supreme court has said that it must be a most arbitrary and oppressive excrcise of power on the part of the presiding judge to authorize a court of error to interfere. Sealy v. State, 1 Kelly, 213; Copenhaven v. State, 4 Geo., 23. In this state it may be said to be settled that where a clear error has been committed in refusing a continuance, without the correction of which a manifest injury will be done, a court of error will interfere; and the party excepting must embody all the testimony in his bill of exceptions, that the court above may see the bearing of the whole case, and thus judge of the ground of the application. McDaniel v. State, 8 S. & M., 401; and see Howell v. State, 5 Geo., 48; Holmes v. People, 5 Gilman, 478; Spence v. State, 8 Blackf., 282; Roberts v. State, 4 Geo., 6, 8.

To obtain an order of continuance the affidavit must be full, satisfactory, and direct as to material allegations for a continuance. Knight v. State, 5 Humph., 599. The affidavit must state facts in order that the court may determine their importance; deponent's opinion of undisclosed facts can constitute no safe or proper grounds for the action of the court. Rhea v. State, 10 Yerg., 258; McDaniel v. State, 8 S. & M., 401. It must state the names and places of abode of the absent witnesses, and that they are material to the prosecution or defense. 8 East, 35; Foster, 2; Mull's case, 8 Gratt., 695; Hurd's case, 5 Leigh, 715; Gordon v. Spencer, 2 Blackf., 286. The affidavit