
    E. W. DERMAN v. THE STATE.
    (S. C., 3 Leg. Rep., 184-185.)
    Jackson,
    April Term, 1875.
    1. CRIMINAL LAW. Continuance.
    The refusal of a court to grant a continuance on first application, and at the second term after presentment, of a . defendant charg-ed with violation of the Sunday liquor law, because of absence of counsel from sickness, is reversible error.
    
      
      2. SAME. Jury judges oí law and facts.
    The jury are judges of law .and fact as well in misdemeanor as in felony cases.
    Cited with, approval: Withers v. The State, 3 Leg. Rep., 106, and ante, page 376.
   Headerick, L,

delivered, the opinion of the court.

Plaintiff in error was convicted at November term, 1874, of the law court of Union City, of selling liquor on Sunday, and'has appealed to this court.

The errors assigned are:

1st. The refusál of the court to grant a continuance on account of the absence of his counsel, on account of sick- ,—

. This affidavit shows that he had employed M. H. Card-well as his attorney, and had paid him his fee, and that he was detained from court on account of sickness.

He was compelled to go into trial without his attorney. The result might háve been the same if his counsel had been present, but on the first application for a continuance, and at the second term after the presentment was made, we are of opinion, the cause, for the reasons stated, ought to have been continued.

2d. The court charged the jury that they were judges of the facts, and that they take the law to be as charged by the court.

The case of Withers v. The State, MS. opinion at Jackson, at the April term, 1874 [since reported in 3 Leg. Hep., 106, and herein ante, p. 276], is referred to as showing this charge to be erroneous, and in conflict with the established rule of law of this state.

In the case cited, it is held, that a charge that the jury were judges of the fact, but not of the law, but must receive the law as charged by the court, was error in a misdemeanor as well as in a felony case.

Eewerse the judgment.  