
    No. 3267.
    State v. Lucker,
    November Term, 1893.
   Defendant being indicted for larceny from the field, which is a misdemeanor, was tried in his absence on the call of the case on the docket at the Court of General Sessions held by Izlae, J., in Berkeley County, in June, 1893, and convicted. Defendant appealed, alleging that he had a meritorious defence, and was absent through no fault of his, as shown by affidavit incorporated into his ground of appeal, but never presented in the Circuit Court.

O. 8. Bissell, for appellant.

Jervey, solicitor, contra.

December 19, 1894.

After stating the facts, the court say: The offence for which the appellant was convicted was made a misdemeanor by an act of the General Assembly passed in 1885. See 19 Stat., 140. Being a misdemeanor, it was legal to try the offender in his absence. The appellant, by his one ground of appeal, in effect, complains that the Circuit- Judge erred in not granting a continuance of his case. This, is a matter within the sound discretion of the Circuit Judge, and we have repeatedly declined to interfere with the exercise by him of this discretion. State v. Howard, 35 S. C., 197-200; Cantey v. Whitaker, 17 Id., 527; State v. Dodson, 16 Id., 459; McDaniel v. Stokes, 19 Id., 61; Westfield v. Westfield, Ibid., 85; Symmes v. Symmes, Ibid. Besides, in the case we do not find the fact that this affidavit was ever brought to the attention of the Circuit Judge at the trial. We are also requested by the attorney for appellant to grant him time to except to the charge of the Circuit Judge. It seems he was retained by the appellant to conduct his appeal at some time in June, 1893. He has, therefore, enjoyed five months within which to make out his exceptions, and no reason is given why he has not been able to avail himself of all this time. We can see no merit in the application.

Judgment affirmed.

Opinion by

Mb. Justice Pope,  