RYLAND, J.
This was an indictment, found by the grand jury of Wayne county, at the Circuit Court, at March term, in the year 1849, against Thomas Stuart, Noel Green, William Green, Alfred Green, and William Cobb, for the murder of George Marr. The defendants were arraigned and plead not guilty to said indictment, at the term aforesaid, and also filed their petition praying for a change of venue, which petition was allowed and the venue changed to the county of Cape Girardeau.
At the May term of the Circuit Court in and for the county of Cape Girardeau aforesaid, the circuit attorney moves the court to have the prisoners brought into court. Whereupon the defendant, Noel Green, is brought into court, and moves this court to continue this case to some day during the present term of the court, and files his affidavit in support of his motion, which affidavit is as follows to-wit: “Noel Green, the prisoner, makes oath that the testimony taken before the committing justice in this case in the county of Wayne, where this indictment was found is, material and important for him on the trial of this cause ; he did not know until yesterday, that it was material or that it was not here, he is informed and believes it is in the possession of the jailor of said Wayne county, he, affiant, on yesterday sent an express for said testimony and believes lie can procure it during the present term of this court, he knows of no testimony present by which he can prove the same facts, he expects to establish by said absent testimony ; his object is not delay. The said testimony is not absent by his connivance or consent, he therefore asks for a postponement of this case for some other day during this term. his
Noel M Gbeen. mark.
[277] This motion to postpone was overruled, and the defendant excepted to the opinion of the court. The ease was tried, so far as Noel Green is concerned; he being tried separately. The following facts were given in evidence before the jury by the witnesses as named (viz.):
The testimony of Alexander S. McDonald. He was acquainted with George Marr ; the last time he saw him alive, was on the 80th of January last; he was between twelve and fourteen years old; he does not know whether George could read or not, he was a boy of common intellect. At the timé witness last saw him alive, lie was lying at the foot of a tree, in the woods, stabbed in the left side, below the shoulder blade ; and on the right side of the face, the wound on his ¡side looked like it was stabbed with a knife about an inch wide; when witness found him, he appeared very weak and was bleeding, witness asked him, if he could get up, he said yes, but could not rise, he lived fifteen or twenty minutes, witness thinks he was in his proper mind ; asked Marr, if he knew him, said he did, and called him by his proper name; witness don’t know how deep the wound was, he bled right smart after he took him up, died (as witness thought) on the way as he was taking him home ; he thought he ■ was dead, witness did not see him breathe after he took him home; he said nothing about dying or hereafter; when the witness first saw him, he asked him if he could get up ; he attempted to so, but could not, witness did not know his age, only supposed he was twelve or fourteen years. John Morgan, a witness; said he did not know much about George Marr’s capacity ; did not know whether he could read ; in point of mental capacity, he was about like common boys; he would weigh about one hundred pounds ; don’t know of his going to church, thinks the boy was twelve or thirteen years' of age, never heard him speak of religion, heaven or hell, the boy never was a witness ; does not know, that the boy would know the obligations of an oath, should think he would know better than to tell a lie. Albert Morgan, says lie has known George Marr 8 or 9 years, thinks he could read a little, recol.lects his being at church once, knows of his attending prayer every night, since the first of August last, don’t know whether voluntarily or by compulsion. The deceased-"was considered a truthful boy, of ordinary intellect, as much so as common boys: deceased came to witness’ father’s to live, last spring two years, and continued to reside there up to the time of his death, never heard anybody speak of his truthfulness : he was truthful as far as witness knew, was twelve or fourteen years old.
The State now proposed to give in evidence the dying declarations of George Marr. The prisoner objected. The court overruled the objection and permitted the dying declarations to be given in evidence, and the prisoner excepted. Alexander S. McDonald recalled. Stated he asked George Marr, who stabbed him, he said Stuart stabbed him, said nothing more on that subject: the way he came to find him, he had started to hunt for those who had not come home. The sister of deceased found him, and called witness, she had left him when witness got to him, saw no marks of a scuffle, nor blood nor weapons on the ground where he found him; he was by the side of the road leading from Morgan’s house to the place cultivated by Morgan down Perkins creek, about half a mile from Morgan’s house or over ; Morgan’s lower place on Perkins creek about a mile and a quarter from his house, found him in Wayne county, Missouri; found the deceased between one and two o’clock, his sister had found him a few minutes before, had not left him more than five minutes. It had rained that day ; saw no tracks of any persons, ground was wet, deceased died twenty-five or thirty minutes after he put him on the horse ; had gone 150 yards when he asked him who stabbed him, thought he was dead when he got half a mile. The boy did not mention the subject of death, witness told deceased he was going to die ; and he had better pray, he said he could not; this was after deceased had told him who stabbed him.
Thomas Hamilton, stated, that Noel Green, the defendant told him (the witness) about a fight, on the evening of the last of January or first of February last, can’t tell exactly the words ; they were in a fight, him and two of his brothers, and Stuart had a fight with William Morgan and two of his brothers-in-law, told him they came running out of the head of a bushy hollow and attacked prisoner and his company : Morgan came with his gun presented [278] as if he were going to shoot, threatened to shoot if they did not leave there, cursed them :• Stuart answered, that lie would not go until he got ready, Morgan presented his gun, as though he was pointing at Stuart, snapped twice, then took a rest, and fixed ; then Stuart fired : prisoner begged Morgan not to shoot, there were other ways of settling difficulties without shooting, but he did shoot: prisoner then raised his gun to strike him, but Morgan came round the tree, got the start of him, struck at him, the prisoner, knocked his gun out of his hands and knocked him to his knees, as he rose, Morgan again struck him and knocked him clear down. At that prisoner gets Dick’s gun and twisted it out of his hands and aimed to break it round a tree but the thought struck him, that he would not, and lie threw it away. At that time prisoner heard Morgan halloo murder, and asked Tom Stuart for God’s sake to spare his life, prisoner then walked towards them, as they lay in a branch, several together, prisoner did not say how many. Then Stuart quit, and Morgan got up and walked off about ten steps, prisoner walked after him a few steps, Morgan turned round and said “Noel, I’ll quit now, I’ll fight no more,” witness asked prisoner where the boy was, he said he was there, but did not say where, asked him, if he was not in the fight, ho said, not that he knew of, asked prisoner if he thought any of them were badly hurt, he said he did not think they were, asked him, which way they went, said, 'Morgan went one way and Dick Marr the other, said Morgan sat down by a log, and the boy, the last he saw of him was sitting by Morgan and appeared as though he was talking to him, the boy was not hurt as he knew of, the prisoner then said they gathered up their tools and went home. Prisoner’s first statement was, that lie and two brothers, Stuart and Cobb were in the woods peaceably cutting house-logs, this conversation took place on the road, they met a traveler and witness was told the boy wás killed, ho again spoke, the prisoner, and told him, “he thought the boy was hurt,” prisoner said he was not, that he knew of. Cross-examined : Stated that he don’t know that ho has stated all that passed, he has stated the substance, to the best of his recollection ; prisoner told him, Stuart was wounded, saw wound on the arm of prisoner, prisoner told him, his brother William’s head was cut open. Witness found cut on Stuart’s arm, found a cut on William Green’s head, saw a slight bruise on a younger brother, prisoner told him, they were in the woods on Congress land peaceably cutting house-logs, were engaged in that when the others came charging on them, witness lives about twelve miles from the scene of the fight, witness was away from home when prisoner came to his house he found him on his return in his shop, this was about sunset, came for him to goto see Stuart, went with him, conversation took place on the road ; found Stuart at Lewis Green’s, witness staid all night, so did prisoner.
Catherine Morgan on oath says : She is acquainted with George Marr, saw him at William Morgan’s the morning of the affray, don’t know of his leaving William Morgan and Richard Marr even then. The last time she saw him was after late breakfast time, next time she saw George was when McDonald brought him home ; he gasped for breath, after he was broúght in ; don’t know the time of day he was brought, it was between ten and two o’clock ; she missed them ail about the same time, to-wit: Morgan, Richard and George Marr. Thomas Hamilton recalled : Saw wounds on George Marr on the side of his face, one on the back, didn’t examine them. Cross-examined : The wound on Stuart’s arm was cut nearly half way round, cutting an artery, bled very much, produced great debility, confined him to bed ; went to Stuart as physician ; he could not get up, did not see him up.
John Gibson, said : I am acquainted with Noel Green, never saw George Marr, but once before saw him dead, was at Lewis Green’s the day of the difficulty, saw Stuart, Cobb, Alfred and William Green, Stuart was in bed, his arm bound up all bloody ; didn’t see Noel, was between twelve and one o’clock, saw Morgan and Richard Marr at Carlton’s that morning alive, saw them in the evening after they were dead, about half a mile from Carlton’s ; heard their guns fired, after he saw Morgan whilst at Carlton’s at work, heard noise, like men fighting, then heard one halloo afterwards not quite in the same direction, so little difference in direction can’t describe it, it was to the loft of the first noise right smartly, saw the bodies of Morgan and Richard Marr near a north [279] course from where lie was at work. Morgan’s house was something near the course from him of the single halloo ; in going from where he was to Morgan’s house, would go something like 200 yards to the left of the first noise. The bodies were found in "Wayne county, could not tell what the second halloo was for, it was just a halloo. Morgan had a gun that day; saw it since at Morgan’s, saw it on the battle ground, it did not look like it was broke, saw another gun then, it was a good deal broken in the stock. Cross-examined : The distance from where witness was to the battle-ground was about half a mile, the noise was like men fighting, can’t give any other description, didn’t have Morgan’s gun in his hand, can’t describe it, it was a rifle; the second noise appeared right smartly further off; the noise was about half a mile from him. The second noise was about 200 yards from the first, the reason he took the course was, he expected a fight. Stuart had entered some land, nearly on the course, where the noise was. Don’t know whether fight was on Stuart’s land or not. Morgan told him that morning, he had came by 'where Stuart had been at work. Morgan’s field was about 200 yards from the battle ground; supposes it was Morgan’s, saw Morgan’s people gather truck out of it; Stuart entered part of it.
Alexander S. McDonald recalled : has been living in the neighborhood 18 months, don’t know anybody by the name of Stuart in the neighborhood except Thomas Stuart.
John Baker : never saw Noel Green until the day he came to Dr. Hamilton’s the clay the battle is said to have taken place; heard him speaking of the scrape he supposed; heard him say, himself, Stuart, Cobb and his two brothers were in the woods cutting house-logs. Morgan, Dick and George Marr came to them. Morgan slipping up like he was going to shoot a deer, about 80 yards off. Morgan cocked his gun, snapped at Stuart’s breast. Prisoner told Morgan, tlmre were other ways of settling difficulties without shooting, he made no answer, but he snapped again, and then fired. After Morgan fired, Stuart fired at Morgan. Stuart’s ball struck a tree about two feet above Morgan’s head : Then Richard Marr, shot, as his prisoner’s brother said, at him the prisoner. Witness asked if any were hurt, prisoner said, he did not know, asked him where the Morgan’s were, he said he left them there, witness asked him again if any of them were killed, he said he did not know, he asked him a third time if any were killed, ho said he expected there were two or three, but didn’t say positively ; witness aslted him if any knives were used, prisoner said he expected there was, when they got into close work. Don’t recollect about prisoner saying anything about having a gun himself, prisoner did not say who he thought was killed, he expected there was two or three ; prisoner said his father told them the night before, they would have a scrape, and they had better prepare themselves, they did so, hut didn’t expect to have such a scrape as they had; didn’t say how they prepared. Cross-examined : This was either first of February or last of January, it was something after 12 o’clock, don’t recollect whether he had eaten dinner or not; prisoner came for Dr. Hamilton,. to go to see Stuart, who had got his arm cut; in speaking of the killed, prisoner did not mention either party, conversation was in the shop of Dr. Hamilton, Dr. Hamilton was present, except whilst lie went out to catch his horse. Thomas Williams was present all the time, it took place a few minutes after prisoner got there. First Dr. Hamilton and prisoner were talking of the circumstance and the witness asked these questions ; prisoner said Marr shot at him, so his youngest brother told him, they were about 80 yards off when prisoner first saw them. Morgan said clear out you damned rascals, then raised up to shoot, said it occurred that day about one and a half miles from Morgan’s in the woods, prisoner said, I expect there was two or three killed, and dropped his head, so ; said they went to father’s that night; that Stuart’s arm was cut very badly, he hurried off for the doctor. George Marr was hewing away at Stuart, cutting away with his axe. Re-examined by State : Prisoner did not see Marr shoot at him, iie had his eye on Morgan, thought him the stoutest man.
Allen Carlton says : Morgan and Richard Marr were in his field the morning of their death, a little more than a quarter of a mile from the battle-ground. He afterwards heard three guns fire, a noise like men quarreling and jowering. [280] This was half an hour after Morgan left. Gibson was with the witness : they went north course. Saw Richard Marr’s gun, he afterwards saw broke off close to the guard, it had a half stock, Morgan’s had a whole stock, Morgan’s gun was not broken as he could see. Witness is not acquainted with any Stuart, but Thomas Stuart, has been living in that neighborhood six years, witness saw logs where the affray took place, they looked fresh cut. Morgan has a field something over 200 yards from the place, used to have a house 170 yards from it, but the house is gone. Cross-examined: Heard chopping that morning, not exactly in the direction of the battle-ground, was not on the battle-ground till late in the evening: saw two guns there and an axe, he did not hear the guns in the same direction of the chopping; did not leave the field where he and Gibson were at work for half an hour after he heard the guns; didnothear any single halloo at all that day, after the noise of the fight; the reason he did not go where he heard the noise, was that he expected somebody was killed, and did not wish to get into difficulty: J ohn Gibson and witness were close together when they heard the noise, stayed together till dinner. Morgan left the old place where the house was over six years ago, did not hear any separate noise, heard an axe before the affray, saw fresh cut logs on the battle-ground ; there is no house or field on the old house place, supposes the logs were cut on public land.
Samuel Manedy says: when he came to the battle-ground, saw Richard Marr lying across a log, about 80 yards off was Morgan dead. Next morning at Morgan’s examined the wounds. On Richard Marr found five, three near the left nipple, one on the right side, one on the left side. On William Morgan' Were nine stabs, seven on the body, one in the thigh, one in the hand. On George Marr was one in the side of the face, from the mouth to the ear, one on the left side. Morgan had a knife in his scabbard, a double-barrel pistol in his pocket, caps on the tubes. In the wound on George Marr he thought he could see the caul fat: it was on left side under shoulder-blade, saw two guns and one axe lying close to the body of Richard Marr. Knows Thomas Stuart, has lived in two mile of him, has lived nine or ten years there, .'knows no other person in the neighborhood of the'name of Stuart, except Thomas Stuart. Morgan’s gun was lying on a tree top, like it was half cocked. Marr’s gun was broken, it had half stock. .Gross examined : Saw the pistoL and knife on the morning after the fight, the pistol was in the right pocket. I looked at the pistol as one of the jurors of inquest, took it out of the pocket and saw caps on the tubes. This was about day-light, it was in the month of January, hut don’t recollect the day of the death. Richard Marr was lying about thirty steps from William Morgan on the battle-ground, didn’t know who took the guns there, both guns were Morgan’s ; the fighting was done in Wayne county in the woods, where there was no field, there were bushes and undergrowth ; there were hushes on the north side of the battle-ground. There was undergrowth all around. Morgan lived one mile and a half or a quarter distant. I did not examine the body of Morgan in the woods : we found the pistol next morning, it appeared as if there had been rain on the bodies before they were removed. Morgan was a stout, strong man.
John James says : I saw William Morgan and Richard Marr, op. the battle-ground, on the last of January or first of February : saw Morgan’s gun and an axe on the first evening, next morning went back and saw another gun, called Richard Marr’s gun, Morgan’s gun was lying half cocked, the pan was open, next evening picked up Morgan’s gun, Myers blew in it, no wind came out, we picked out something of the appearance of wet powder, out of the touch-hole, carried the gun to Mr. Morgan’s, there unbreeched her, and got a ball and wet powder out, the gun was lying on the second day, half cooked and pan open, just as she was before, as nigh as he c'ould tell, when he noticed the gun the pan was loose, if the muzzle was turned down it would open; one of the guns had'a flint lock, the other a percussion, Richard Marr’s was a percussion lock; Richard Marr’s gun was half stocked, a piece about one foot long was broken off of Richard Marr’s gun, the piece of the stock was picked up ou the ground. There was a piece of a gun stock between Morgan and his gun, it did not belong to either, only saw one piece besides Marr’s, that was about one foot and a half long. Cross-[281] «examined: It was something like sundown when witness first came upon the ground, laiew Morgan’s gun, saw Richard Marr’s gun next morning, on the first evening saw an axe, but didn’t know whose it was, has not seen it since, that he knows of, supposed to he Morgan’s. Hahn Carlton and Bellinger were on the ground when he went .there. The broken gun was some little nearer to Morgan than his own, don’t recollect that he noticed any shoe tracks. When Myers blew in Morgan’s gun no wind ■came through, we got wet powder and a ball out, but saw no patching, there had been a hard rain in the forepart of the first day. Again examined by «the State, says: he knows Thomas Stuart, knew no other Stuart in the neighborhood. The guns were something like fifteen steps apart, Marr’s gun was fifteen steps from Morgan’s gun, Morgan was fifty steps north of Marr, Morgan’s gun was about twenty steps.from him, the axe lay a northeast course from Marr’s gun, on the battle-ground, don’t know for certain, but thinks the axe was nearer Morgan’s gun. He examined the bodies of William Morgan and Richard Marr, Morgan was wounded on his head, about the length of his finger, wound about one-half inch wide and cut to the skull, but the skull was not broke, as he could discover, there were seven wounds on the •body, one in his hand and one in his thigh, three were about one inch and a quarter wide. Richard Marr had five stabs, three around the left nipple, and the other two in the right side, opposite the heart. Cross-examined ■again: The entry of land made by Stuart, was made down about the battleground, taking a part of Morgan’s farm, takes a part of the field, where the battle-ground was in the woods.
Samuel Thomson says : He heard Noel Creen give testimony in the case of Thomas Stuart the other day, said they wore at work cutting house logs, when Morgan and the two Marrs came up, out of the head of a thickly hollow, towards them ; when they got in a short distance Morgan said, here you are, you damned son of a bitch, told him to clear himself, or he would blow his brains out. Stuart told him, he would not go till he got ready; he advanced on to where they were, and laid his gun up by the side of a tree and snapped twice, his gun apparently presented at Stuart” the third time it fired ; Richard Marr shot at him (Creen); Morgan went on towards Stuart, came close by him, and knocked him down with his gun, and went on and knocked Stuart down with his gun ; first he saw when he got up, Ceorge Marr was striking at Stuart with his axe, while Morgan had him down ; it struck Stuart about the side somewhere, said the axe seemed to hang in his clothes ; Morgan told Stuart to quit, he had enough. Morgan came walking away, and he, Creen, was going across ; Morgan told him not to follow him, he had enough, then said we all left there and went together home ; last he saw of them, Morgan was sitting on á log and Ceorge Marr was holding his hand ; Ceorge was not hurt as he knew of at that time, they went to old man Creen’s. Cross-examined : Noel Green said, Stuart got a bad’ cut on his arm; don’t know positive as to what he said, Morgan said, but thinks he said damn son of a bitch, was speaking to Thomas Stuart. This was all the evidence given in this case.
Upon this state of the case, the State by the circuit attorney, asked the following instructions, which were given by the court. 1st. That the facts necessary to be established in a case, may be established by circumstances alone. 2nd. In receiving the declarations of the prisoner, the jury ought to take the whole of them into consideration, and may'believe that part, which charges the prisoner, and reject that which is in his favor. 3rd. The dying declarations of a person who has been killed, if made with regard to the circumstances which produced his death, are to bo received with the same degree of credit, as the testimony of the deceased would be, if examined under oath as a witness. 4th. Deliberation and premediation may be proved directly or be inferred from the circumstances connected with the killing, and malice may be established in the same way. 5th. If malice existed, it is sufficient; it is not necessary to prove the length of time it existed. 6th. All present at the time of committing an offense, are principals, although one only acts, if they are confederates and engaged in a common design, of which the offense is part. 7th. It is not necessary, in order to render a party an aider and abettor, [282] that he should he actually preseut; it is sufficient, if he was in such a situation as to be able readily to come to the assistance of his companions, the knowledge of which was calculated to give additional confidence to them, and it makes no difference who strikes the blow, the blow of one is the blow of all. If the jury believe that Thomas Stuart willfully, deliberately and premeditat-edly killed the boy, George Marr, and that Noel Green, .the defendant, was present, aiding and assisting in the act, he is equally guilty as he who committed the act.
To the giving of these instructions the defendant objected, and excepted to the opinion of the court.
The defendant then asked among others, the following instructions which the court refused. 1st. The jury must be satisfied from the evidence,, that Noel Green, did willfully, deliberately and premeditatcdly, murder George Marr, or they must acquit the prisoner. 2nd. In order to convict the prisoner, the jury must believe from the testimony, that the prisoner intended to kill at the time of killing, and that he intended to kill before the killing took place. 3rd. In order to convict the prisoner, the jury must believe from the testimony, that Stuart murdered George Marr, and that the prisoner was present, and willfully, deliberately and prcmeditatedly aided in the commission of the murder. The court then gave the jury, the following instructions on the part of the defendant. 1st. The State must prove the charge as laid in the indictment or the jury must acquit. 2nd. If from the testimony, the jury have a reasonable doubt as to the guilt of the defendant, they ought to acquit. 3rd. If from the testimony, the jury believe that the accused and his party, were peaceably engaged about their own business, and were attacked by Morgan and his party, Richard and George Marr, with such violence and surprise, and with deadly weapons to murder them or to do them some great personal injury, and there being immediate danger of such designs being accomplished, then they had a right to use such force as was necessary to repel the assailants,_ if death ensued then such killing was justifiable, and the jury must acquit. 4th. If the jury should believe from the testimony, that the prisoner went with Stuart without any intention on his part to commit a felony, and Stuart killed Marr, without the consent and aid of the prisoner, then they must acquit the prisoner. That presumption to justify the conclusion of guilt must be reasonable and flow necessarily from facts proved in the case. To which opinion and decision of the court, the defendant excepts.
The jury found the prisoner, Noel Green, guilty of murder in the second degree, and assigned his punishment to ten years’ imprisonment in the State penitentiary.
The defendant, thereupon, moved the court to set aside the verdict, and grant him a new trial, for the following reasons : 1st. The court erred, in refusing a postponement of the case, on the affidavit of the accused. 2nd. The court misdirected the jury as to the law of the case. 3rd. The finding of the jury is against the evidence. 4th. The finding of the jury is against the law, as applicable to the case. 5th. The finding of the jury is against the weight of testimony. 6th. The jury from the law and testimony in the case should have acquitted the prisoner. Which motion the court overruled. The defendant excepted to the opinion of the court, prayed for an appeal, which was allowed him, and brings his case to this court.
From the record and proceedings of the court below, it will be necessary for this court to review the action of the Circuit Court in overruling the defendant’s motion to postpone the trial for some other day during the same term of the court. Also the overruling the defendant’s objection to the testimony, describing the wounds on the bodies of William Morgan and Richard Marr, their situation on the field of battle when they were found.
The motion to postpone the trial unto some other day in court, is one addressed to the sound discretion of the. court, and unless we find that the court has exercised this discretion oppressively or unsoundly and indiscreetly, we will not interfere with its action. The business before the court, the great number of witness and venire men in attendance, are all to have their consideration, in granting such indulgence. The affidavit of the prisoner shows no grounds for the postponement. The testimony taken down by the committing [283] and examining justice, is not evidence for the State, or prisoner, on his trial upon the indictment; it may have been important for the prisoner to have "been able to hand his counsel the testimony, thus taken down as the means of enabling him the better to understand the transaction, and to make preparation for the defense on the trial, but not to use it as evidence before the jury. In this case it is probable, his counsel did not need it, or he would have made inquiry for it sooner, and taken steps to have obtained it, or at least would have informed his client of its importance. We find no error, therefore, in the court below, in refusing to postpone this trial for some other day at the.same term. Nor do we perceive any error in permitting the witnesses to testify in regard to the wounds on the bodies of Morgan and Richard Marr. This whole affair may have been considered as the same transaction — different scenes making up the awful tragedy. It was well then to let the whole appear before the jury.
We will next consider the instructions given by the court for the State, Also those refused on the part of the defendant, as well as those given for the defendant. . H
We find nothing incorrect, nothing illegal, in the instructions given for the State, they contain the law, so far as relates to transactions of this character. The instructions which the court refused to give for the defendant as above sot forth, are not the law, and the court properly refused them, they are calculated to mislead the jury, and do not contain the law.applicable to this case, or to the facts as detailed in evidence in this case.
The instructions which the court gave for the defendant were proper, and are what the law of the case warrants; and more especially do the 3rd and 4th instructions for the defendant put his case before the jury in a point of view as favorable to the prisoner as the law' arising from the testimony given before them w'ill warrant. We consider the court w'ent far enough for the prisoner. He has no cause to complain of the action of the court. We find no error, therefore, in giving or refusing to give instructions. The action of the court, therefore, in overruling the motion for a new trial, wras correct, and its judgment is affirmed.