
    Munford Smith v. The Commonwealth.
    Criminal Law — Continuances.—In what case it is not proper to allow a writ of error to a judgment of the Circuit Court, overruling a motion made by the prisoner for a continuance.
    .Same — New Trial — Previous Expression of Opinion by Juror. — where a prisoner was convicted of murder in the second decree, and the term of bis imprisonment in the penitentiary-house fixed at ten years, a motion for a new trial, on the ground, that one of the jurors had expressed an unfavorable opinion of his case before trial, saying that he ought to be hung, was refused; it not appearing that it was a deliberate opinion.
    
      
      Criminal Law — Continuances. — See monographic note on “Continuances" appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
      Same — New Trial — Previous Expression of Opinion by Jurors. — Mr. Minor (Min. Crim. Law 299) says that the previous expression of an opinion by a juror of the prisoner’s guilt is not cause for a new trial if the opinion were casual and hypothetical, and not deliberate and decided, nor indicative of malice. As authority for this rule, he cites ‘the principal case; Kennedy’s Case, 2 Va. Cas. 510; Poore v. Com., 2 Va. Cas. 474; Curran’s Case, 7 Gratt. 619. See principal case also cited in Jones’ Case, 1 Leigh 616; Hailstock’s Case, 2 Gratt. 566; Curran’s Case, 7 Gratt. 623; foot-note to Jackson v. Com., 23 Gratt. 920; State v. McDonald, 9 W. Va. 465; State v. Harrison, 86 W. Va. 736, 15 S. E. Rep. 984.
      In Sweeney v. Baker, 13 W. Va. 228, it is said: “The decisions in Virginia and West Virginia show, that here the courts regard with extreme jealousy, all attempts to set aside verdicts ou the ground of objections to jurors, existing before they were sworn. Here a verdict will not be set aside for any such cause, unless it appears to have operated, so as to inflict injustice. See Smith's Case, 2 Va. Oas. 6;
      
      Poore’s Case, 2 Va. Cas. 474; Kennedy’s Case, 2 Va. Gas. 510; Brown’s Case, 2 Va. Cas. 516; Hughes’ Case, 5 Rand. 655; Jones’s Case, 1 Leigh 598: Hailstock’s Case, 2 Gratt. 564; Heath’s Case, 1 Rob. R. 735: Cur-ran’s Case, 7 Gratt. 619; Dilworth’s Case, 12 Gratt. 689; Bristow’s Case, 15 Gratt. 634; Thompson v. Updegraff et al., 3 W. Va. 629; State v. McDonald, 9 W. Va. 456; Zickefoose v. Kuykendall, 12 W. Va. 23.” To the same point the principal case was cited in footnote to Dilworth v. Com., 12 Gratt. 689 (citing also many other cases); foot-note to Bristow v. Com., 15 Gratt. 634; State v. Greer, 22 W. Va. 824; State v. Hobbs, 37 W. Va. 826, 17 S. E. Rep. 385.
      See further, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   This was an application for a writ of error. The plaintiff in error was Indicted, before the Superior Court of Law for Grayson county, at its May Session 1815, of the murder of James Henderson. He was tried, and found guilty of murder in the second decree, and the term of his imprisonment in the penitentiary fixed at ten years, and he was sentenced accordingly.

After his arraignment and pleading to issue, he moved for a postponement of the trial till the next term, on the ground, that he verily believed that a fair and impartial trial could not then be had, and supported his application by the following affidavit: “Gray-son county, set: This day came D. S. before J. H. a Justice, &c. and made oath, that he is employed as counsel for Munford Smith, who is *charged with the murder of James Henderson, and for which offence he stands Indicted before the Superior Court: that his situation as counsel has induced him to attend to the opinion of the people in relation to the case of the said Smith, both on the day of the last election, and on this day, and that he verily believes that the public mind is in a high state of excitement, and irritation against him, so much that he is truly apprehensive that his case cannot be decided without having arrayed against it, the prejudices (though honestly entertained) of the country: he is led to this conclusion from the circulation of reports against the said Smith of his having committed other heinous crimes, as well as from the accounts of the act in question, which the affiant has reason to believe unfounded, exaggerated, and misrepresented.” The Court refused the motion, considering the said affidavit insufficient. The prisoner excepted to the opinion.

After the verdict, the prisoner moved the Court to set aside the verdict, and grant him a new trial, on the ground, that James Bry-son, one of the jury, had expressed himself unfavorably to the prisoner before the trial, which fact had been unknown to the prisoner until after the trial. In support of the motion, the prisoner produced J. A. M’Craw, a respectable witness, who deposed, that on, or about the 24th of April last, he was at the residence of W. and J. U. in the county of Surry, North Carolina, adjoining the county of Grayson, about 29 miles from Grayson Courthouse, and about 17 miles from where the supposed murder happened, where a number of persons were assembled at a wedding ; that the witness went into the piazza, where there were a number of persons, and among them James Bryson, whom he heard as he came into the company, use these words :' “Damn him, he ought to be hung,” which words, the witness believed, had reference to the prisoner, because the offence of which he stood charged was the subject of general conversation in the neighbour-hood: because there was no other person accused of any offence in the country which had excited attention, and because James Henderson, the deceased, had lived in the neighbourhood before his death; but the witness stated, that he neither heard the name of the prisoner or the deceased mentioned ; he, hearing the words stated, replied in these words, “ don’t let us hang the man without letting him have a fair trialto which the said James Bryson made no answer, nor does*the witness know whether he heard it. The prisoner also proved by Amos Ballard a respectable witness, that he saw the said James Bryson at the election in Grayson county which happened on the last Tuesday in April last; that shortly thereafter he heard it said by several persons (who they were he had forgotten), that the said James Brysqn had stated at the election that the prisoner had, entertained malice against the deceased for several years past, and that his offence was murder in the first degree, and ought to be punished as such. The Superior Court refused a new trial, and the prisoner excepted to the opinion.

The General Court refused to award the writ of error.

Note (in edition of 1853). — 1. On the Question whether there was error in the Circuit Court’s refusal to put oft the trial to another term, the Court was of opinion that a motion for a continuance was addressed to the sound discretion of the Court and unless it clearly appeared to the Appellate Court that this discretion was improperly exercised, a writ of error ought not to he allowed. In this case there was no proof of any undue means used to prejudice the public mind, and there was only the single affidavit of the counsel for the prisoner stating his belief of the existence of such prejudice. It was easy for the Judge who sat on the trial to ascertain whether that belief was well founded, and very difficult for the Appellate'Court to say that he ought to have been satisfied with the affidavit. The Court could not say there was any error in'his judgment on this point. See 1 Ohitty’s Grim. Law [491] ; 4 Term Hep. 285; 1 Burrow, 510; 6 Bao. Abr. 652; Macnally, 667.

2. On the Question whether there should have been a new trial, on account of the prejudice in the mind of the juror, there was a difference of opinion. Holmes, J., relied on the case of the ¶. States v. Fries, 3 Dallas, 515, to shew that a new trial ought to he awarded. The other Judges were of opinion that the remark ascribed to the juror by the witness M’Craw. did not prove that he had formed a deliberate opinion of the prisoner’s guilt, hut was a hasty exclamation which any unprejudiced man might make on hearing of a murder and that the verdict supports that idea, because the juror did not decide that he should be hung. They also though that the evidence of Ballard proved nothing, as it was merely hearsay: and, therefore, a new trial ought not to have been granted.  