
    Lewis Ogle v. The State of Mississippi.
    1. Practice : continuance : refusal to grant not error, unless manifestly wrong. — Applications for a continuance 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 for error.
    2. Criminal law: juror: competency of. — 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 impartial, and competent as a juror. Per Smith, C. J., and Handy, J.
    3. Same. — But in such a 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 as objectionable, forced upon him. Per Fisher, J.
    4. Same : erroneous instructions, not prejudicial to prisoner, no ground por reversal. — A verdict and judgment convicting the prisoner of manslaughter, will not be set aside for an error of 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. The prisoner is not injured by the ' error, as the verdict secures to him all he sought by the instructions.
    In error from the Circuit Court of Holmes county. Hon. E. G. Henry, judge.
    At the April Term, A.D. 1856, of the Circuit Court of Holmes, the plaintiff in error, Lewis Ogle, was indicted, tried, and convicted of the murder of one W. P. West. A new trial was on his motion granted, and be was again tried at the next October Term, and convicted of manslaughter in the first degree. At this last term, 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 prisoner were very friendly, up 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 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 by 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 empanelling 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.
    On the trial, William Weed, a witness for the State, testified that he went to the house of deceased, on the 3d day of January, A.D. 1856; and as he arrived at the yard-fence, he heard loud talking in the house, and recognized the prisoner’s voice, and heard him call the deceased a d — d thief. He went in the house, and saw deceased lying on a bed, with his coat and boots off, and the prisoner was standing by his side. The prisoner rubbed his fist in deceased’s face, and struck him. Deceased pushed the prisoner off with his hands, and kicked or shoved him with his feet. The deceased then got up and went to the fireplace, and stood with his back to the fire, and with his hands hanging down. The prisoner then took a large, heavy rifle-gun from the rack, and pulled off a linen cover from the table, and cocked and presented it at the deceased, and told the deceased, if he moved or shook, he would kill him. Deceased did neither,but stood still; prisoner then let down the hammer of the gun, and changing its position, stepped more in front of the deceased, and struck him one blow on the left side of the head, with the barrel of the gun. The blow was not an overhanded one, but was stricken “ rather obliquely.” The deceased sunk down on the floor, and witness assisted him in a chair; the blood gushed out of his mouth and nostrils. The prisoner then called witness out into the gallery, and asked witness if he thought deceased was much hurt; witness replied, “he thought he was.” Prisoner then said, if deceased was much hurt, “he would have to make a clean leave, and that Jim Griffin would lose his watch.” Prisoner then told witness that his brother had been overseer for West the year before, and was turned off, on account of some difficulty. During the time the witness and prisoner were in the gal7 lery, the wind was blowing, and the smoke coming down the chimney, and prisoner said, he could smoke over deceased’s blood. After deceased was struck, he went out into the gallery and vomited blood. The prisoner also stated to witness, that he had been hired to oversee for West that year. That he had borrowed Thomas Griffin’s watch, and that some of deceased’s negroes had stolen it, and that deceased had protected them in it.
    It was proved by Dr. Thorn that the deceased’s skull was fractured, and that he died of the wound inflicted, on the next day, about twelve o’clock.
    
    Thomas Griffin, for the State, stated, that a short time before the killing of West, he attempted to shoot prisoner’s rifle, and that it snapped five or six times. Witness also stated that he had a conversation with prisoner, in which he stated that West was very troublesome and foolish when drinking.
    Thomas Lumpkin, for the State, testified, that in August, 1855, the prisoner told him, that he had had a “difficulty” with West about a dog, and that if West “ ever crossed his path, he would take a stick, and maul the life out of him.”
    Alpheus Johnson, for the State, testified, that on the morning West was killed, the prisoner told witness that, on the day previous to that time, he had snapped his gun at a deer, two or three times, and that it would not “go off.”
    It was proven, on behalf of the prisoner, by two witnesses, who had been examined for the State, that on the night previous to the killing of West, that he and the prisoner were friendly, and were playing cards, and drinking whiskey together, and that, on the next morning, the deceased continued to drink very freely.
    It is unnecessary to set out the instructions to the jury.
    The, prisoner moved for a new trial, which was denied, and he sued out this writ of error.
    
      John W. Wood and B. A. Anderson, for the prisoner.
    
      J). 0. (xlenn, attorney-general, for the State.
   Fisher, J.,

delivered the opinion of the court.

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. 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 >7-

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 douht 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.

Again, a juror being pronounced competent to the court was tendered to the prisoner, and he was either compelled to accept him or to exercise his right of challenge. The juror, in answer to the question, whether he had formed or expressed an opinion as to the guilt or innocence of the accused, stated that he had neither formed nor expressed such opinion, hut that he had an impression as to the killing, from rumor, which it might require evidence to remove. The chief justice and my associate, Judge Handy, are of opinion, that this case is clearly distinguishable from the case of Nelson v. The State, and others in this court, and that the juror was competent. Not, however, being able to yield a full concurrence in their opinion on this ground, I am nevertheless of opinion that the record shows no error on this point, for which this court can reverse the judgment. The juror not having been accepted, but set aside, under the peremptory challenge of the prisoner, he must show that the decision of the court was not only wrong, but, that having to exercise his right of challenge to get rid of the juror, he, the prisoner, exhausted his challenges, and having done so, he was liable to have other jurors equally or more objectionable forced upon him. The question is not whether the court erred as to some minor point on the trial, but whether the objection, which existed as to this person, who was tendered as a juror, and rejected by the prisoner, existed as to any of the jurors who sat upon the trial; for if not, how can it be said, that the prisoner has not been tried by an impartial jury, free from bias or preconceived opinions ? The question, to my mind, is whether there is any valid objection, which can be urged against any or all of the jurors who sat upon the trial, and not whether objectionable persons were summoned, and pronounced competent jurors by the court, but not taken by the prisoner. One of the very objects of the law, in giving the prisoner the right to challenge a certain number according to his own discretion, was to protect him against the action of the court in selecting the jury. But if an impartial jury has been selected, as we must presume it to have been, unless the contrary be shown, how can it be said that the action of the court, though wrong on this point, has been prejudicial to the prisoner ?

The last error assigned, relates to the action of the court, in giving, modifying, and refusing certain instructions, on behalf of both the prosecution and the defence. This error may be briefly disposed of. The object of the instructions on behalf of the prisoner, was to reduce the crime from murder to manslaughter, and admitting that the court erred, both as to the modification made to the instructions given, and as to those refused on behalf of the prisoner, there is still no error of which he can complain, for the reason that the very object sought to be accomplished by the instructions, has been attained by the verdict of the jury, acquitting him of murder, and finding him guilty only of manslaughter. The action of the court could have only been the subject of revision, in the event of a verdict for murder, having been returned by the jury, not intimating that even then, it would have been objectionable. We have deemed it unnecessary to notice the testimony in the record. It will be sufficient to remark in regard to it, that in our opinion, the jury has given the prisoner the benefit of every reasonable doubt “which could exist, in finding him guilty of the highest degree of manslaughter.

Judgment affirmed.  