
    George Blackburn v. The State of Ohio.
    Error to the Court of Common Pleas of Morgan county.
    At March term, 1866, of Morgan Common Pleas, George Blackburn, having been indicted for burglariously and forcibly breaking and entering, in the night season, the dwelling-house of one Reuben Porter, with intent to rob, etc., was found guilty, and on the 17th day of March, 1866, was sentenced to be confined in the penitentiary for ton years, etc.'
    On the 8th day of January, 1873, on application then made, a writ of error was allowed, returnable to the Supreme Court.
    No attempt to institute any proceeding to reverse the judgment of the Common Pleas bad previously been made.
    The charge to the jury, at the trial, contained the paragraph quoted in the fourth proposition of the counsel for the plaintiff in error.
    
      Lucius P. Marsh, for plaintiff in error:
    1. The refusal to continue the case was an abuse of the discretion of the court.
    2. The challenge of jurors because of opinions formed by them should have been sustained. The statute (S. & C. 1197) is in derogation of common-law rights. No challenge should be overruled unless the facts be established according to the letter of this statute. The evidence did not-make it “ appear ” that the opinions “ were not formed in whole or in part from conversation with witnesses.” Examined in the light of Cooper v. The State, 16 Ohio St. 329, the ruling of the Common Pleas was erroneous.
    3. The act of March 3, 1860, S. & C. 1197, deprived Blackburn of a common-law right. See Fouts v. The State, 7 Ohio St. 471; Work v. The State, 2 Ohio St. 296.
    4. The court erred in charging the jury that “if they were satisfied that a witness had knowingly stated as true what he knew to be false — a material matter — the jury were bound to discard his whole evidence.” See Mead v. McGraw, 19 Ohio St. 55. Upon what is shown in this record, this court can not assume that this charge was “a mere abstract proposition.”
    
      F. B. Pond, Attorney-General for the State:
    1. The court has no jurisdiction of this case. The writ of error was not applied for until more than three years from the judgment. Sec. 199 Criminal Code, 66 Ohio L. 817; sec. 528 Civil Code, S. & C. 1106 ; S. & C. 1187, sec. 1.
    2. A motion for a continuance is addressed to the sound discretion of the court, and generally an order overruling such motion can not be reviewed on error. Loeffner v. The State, 10 Ohio St. 598; Holt v. The State, 11 Ohio St. 691.
    3. The common law as to crimes and offenses, and the modes of procedure in criminal eases, was never in force in Ohio. All this must be matter for legislative enactment in this state. Winn v. The State, 10 Ohio, 345. The act of March 3, 1860, S. & C. 1197, provided a reasonable rule for determining the competency of a juror.
    4. It must appear that some evidence was given tending to prove a state of case, in which the charge complained of would be material, before the judgment can be reversed for error in the charge to the jury. Stewart v. The State, 1 Ohio St. 72, 73.
   By the Court.

Under section .199 of the code of criminal procedure, the time for allowing writs of error in criminal cases not punishable with death is not limited to three years from the rendition of the judgment, as in civil cases.

Other questions, arising upon assignments of error in this case, were disposed of under the authority of the following decisions: Loeffner v. The State, 10 Ohio St. 598; Holt v. The State, 11 Ohio St. 691; Cooper v. The State, 16 Ohio St. 329; and Mead v. McGraw, 19 Ohio St. 56.

Judgment reversed, and cause remanded for new trial.  