
    The State against Smith and Cameron.
    
      October term, 1796.
    Oa not guilty pleaded to an indictment for an assault and battery, evidence of extenuating circumstances is improper to go to a jury on the trial, but ought to be submitted to the court on affidavits before sentence is pronounced. And in order to compel a witness to attend and give such kind of testimony, (if ■necessary) the defendant is entitled to a subpoma in same manner as on the trial of an issue..
    UPON an indictment in the court of general sessions of the peace, &c. for an assault and battery. Not guilty pleaded.
   On the trial of this case, the defendants offered to give in evidence to the jury a variety of extenuating circumstances, which were calculated to lessen the nature of the punishment, but which did not go either to a justification, or to disprove the charge laid in the indictment ; which the presiding judge refused to admit as proper testimony to go to the jury on the issue of not guilty pleaded.

On a motion for a new trial, on the ground that the tes* timony offered should have been permitted to have gone to the jury, it was ruled by all the judges present, that the presiding judge at the trial had very properly rejected such testimony, on the issue of not guilty pleaded, as irrelevant to the point before the jury; but that all such extenuating circumstances should be submitted to the court, on affidavits, a reasonable time before sentence is pronounced. And in order to guard against a failure of justice, by the non-at- - tendance of witnesses to give testimony of such extenuating circumstances as a defendant may be desirous of submitting to the court on the sentence day, they were further of opinion, that a defendant was entitled to a subpcena, as a matter of right, to compel the attendance of witnesses on such occasions, as well as on trials of issues before a jury.

Present, Grimke, Waties and Bay.

Burke afterwards concurred.  