
    Eppes v. The State.
    Where an indictment purported tobe signed by a district attorney pro tem.y and it was assigned for error that tho indictment was not signed by one authorized to act as district attorney, tho Supremo Court said, The court below recognized tho official character and authority of tho person who acted as district attorney; and in the absence of anything appearing in the record to tho contrary, we must presume that he was duly and legally appointed, and that lie rightfully exercised the office.
    See this case as to continuances in criminal cases.
    Where a motion has been made to continue, including in the affidavit seven other cases, all for exhibiting a faro bank, the court said, The record disclosed a wholesale swearing for continuances of a character well calculated to discredit the affidavit and to cast suspicion on the integrity of the application. Under the circumstances it was, we tiling, rightly refused.
    Rehearing.
    It is not essential to the validity of an indictment that it be signed by the district attorney* (Noto 8G.)
    Appeal from Rusk. An indictment was preferred against the appellant for keeping and exhibiting a faro bank, signed “W. H. Estill, District Attorney, fitli District, pro tern.'’’
    
    
      The defendant made an application for a continuance, including in his affidavit with this seven other eases, and stating that the indictment “lias been “preferred against him at the present term, and that he lias not had time to “procure the testimony of several witnesses that ho believes material to his “ defense in the above cases, and some of them are not residents of the county “ and who are not in attendance upon this court,” and that a continuance was not asked for delay. His application upon this affidavit was refused, and he then filed a separate affidavit in this case, asking a continuance on account of the absence of one tally, whose testimony, he averred, “he believes will he “material to his defense.” The court refused to receive and entertain the second affidavit. The defendant was convicted and appealed.
    The errors assigned and relied on were :
    1st. That the indictment was not signed by one authorized to act as district attorney.
    2d. That the court improperly refused a continuance.
    
      Armstrong Ochiltree, for appellant.
    
      Attorney General, for appellee.
   "WheeleR, J.

In support, of the first ground of error assigned it is insisted that the contingency had not happened which authorized the appointment by the court of a 'district attorney pro tem. To this it is a sufficient answer that the court recognized the official character of the person who acted as district attorney; and in the absence of anything appearing in the record to the contrary, we must presume that he was duly and legally appointed and that he rightfully exercised the office.

In respect to the refusal of a continuance it maybe observed that the statute does not prescribe what shall be sufficient on a first application. (Hart. Dig., art. 815; Hipp v. Bissel, 3 Tex. R., 18, 22.) We must suppose that it was intended that less should be required on a first than on-a second application. But as the statute does not prescribe what less than is required on a second shall be sufficient on a first application, that must be. left in a great decree to the discretion of the court in the particular case. (II).) It is uune-cessafy to ascertain in the present case what may be a proper limit of the discretion confided by the law, or to determine whether the statute regulating the granting of continuances is applicable to this class of cases. It may be remarked, however, that its reason seems equally applicable to criminal as to civil cases. There would seem to be quite as much reason to place a limit on judicial discretion in the former as in the latter, and to guard against its abuse by legislation. In a case like the present, however, unless there is cause to. apprehend that there has been an abuse of the discretion confided to the judge which has worked some wrong or injustice to the party, the court will not revise its exercise. We see no reason for such an apprehension in the present case. It might be indicated as a want of sufficiency in the first application that the affidavit did not give the name of any witness, nor did the affiant slate that he expected to be able to procure the attendance of his witnesses at the next term, or indeed that he expected ever to obtain their testimony; and the second affidavit also is obnoxious to the latter objection. But it is not proposed to rest our decision on this ground. The record disclosed a wholesale swearing for continuances of a character well calculated to discredit the affidavits aiid to east suspicion on the integrity of the application. Under the circumstances it was, we think, rightly.refused, and we are of opinion that the judgment be affirmed.

This opinion applies also to cases' numbered 532, 533, 534, 535, 536, 537, and 538, between the same parties, which in their facts differ in no essential respect from the present ease.

REHEARING.

Wheeubr, J.

A reconsideration of our opinion in these cases is ashed upon the argument and authorities contained in a brief of one of the counsel for (lie appellant which had been submitted with One of the. cases, but which was not before ns when our opinion was given in the others.

It was denned sufficient to notice the objections to the judgment urged by counsel in the brief which was before us. We have now considered the argument which '.as licen brought to our attention in the replication for a.rehearing, and while it requires further notice, and a different answer to the question presented, it does not change the conclusion at which we formerly arrived.

It is deemed sufficient to dispose of the objection now presented that in our opinion it was not necessary that the indictment should have been signed by the attorney of the State. It is essential to the validity of an indictment that it bo signed by the foreman of the, grand jury, hut neither the common law or any provision of our statute law of which wo are aware requires signing by the prosecuting officer of the State. It does not enter into the constituents of an indictment as' given in the common-law treatises concerning its form and requisites.

Reference is made by counsel to certain American eases,’ particularly to a case in Tennessee, in which it is said to have been held that the signature of the proper law officer was necessary. The cases are not accessible. But we have access to an early statute of that State which may well have warranted the decision. (Scott’s Laws of Tenn., 177, ch. 30.) How far similar decisions in other States may be founded on statutes we have not the means of knowing. We, however, ihui that in North Carolina and Virginia this question has been determined in accordance with the view we have expressed. It has there been said “That indictments should he sanctioned by the finding of a grand jury, “and signed by their foreman as the best evidence of their being so found, is “essential t.o their validity, but neither the common law nor any statute “that we know of requires them to be signed by the attorney general. An “indictment legally framed in other respects would not be bad by hot being “signed by the prosecuting officer. (Per Taylor, C. J., 6 Wheeler’s Am. Com., L. 17.)

The signal ure of the district attorney to the. indictment is proper, but we do not think it indispensable; and if a signature other than that of the proper officer he attached, it may he rejected as surplusage. Consequently its presence or absence in any case, and whether the signature annexed in the present case he that of the proper district attorney of the district or not, does not affect the validity of the indictment. It is unnecessary to inquire whether we can judicially take notice that the signature is not that of the proper distinct attorney, or whether, if the person acting was district attorney de facto, acting by appointment of tile court in which the indictment was preferred, his authority to exercise the. functions of the office can now ho inquired into with the view to invalidate his acts. It is sufficient to dispose of the question as now presented that we are not informed by the record — the mere signature attached to the indictment in the light in which we view it not affording ns judicial information — that tiie indictment was not, in fact, preferred in a proper manner and by competent authority. The application for a rehearing is discharged.

Judgment affirmed.

Note 86. — Pierce v. The State, 12 T., 210. 
      
       Note. — The Reporter found no briefs for the appellants on file.
     