Clayton, J.
This was an indictment for murder in the Circuit court of Hinds, which resulted iu the conviction of the defendant. A great number of errors have been assigned as causes of reversal.
-The first is, that there was error in overruling an application for a continuance upon the affidavit filed. Our statute upon this subject lays down a very explicit rule. It provides that upon every application for a continuance, the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or witnesses, in order that the court may judge of the materiality of such facts to the issue or issues in the case.1 H. & H., 610, § 37.
The continuance of a cause is matter resting in the sound discretion of the court, and an appellate tribunal will never interfere but with extreme reluctance and caution.2 To justify such interference, there must have been a palpable error committed, without the correction of which manifest injustice will be wrought. 5 Humphreys, 568; Bellew v. The State, 2 Rob. Virginia Rep. 849; 10 Leigh, 692; 4 Humph., 202.
[344]*344When the application for a continuance is made, the judge is supposed to know nothing of the testimony which will be adduced, he can therefore only determine the materiality of the facts stated in the affidavit by the consideration of what might be urged in the defence, if they should be established. His means of judging are less satisfactory at that stage than at the close of the trial. When a continuance has, in the opinion of counsel, been improperly refused, it is the regular course of practice to move for a new trial, after the verdict has been rendered, when the judge can see more clearly 1he bearing of the testimony sought to be introduced, and can have an opportunity of correcting his error, if convinced that he lias committed one. If he refuse the new trial, the bill of exceptions embodying the. whole testimony will furnish this court with the means of forming a correct conclusion. This is safer than merely to bring up the affidavit for a continuance, without all the other testimony in the cause. Whether the continuance was improperly refused in this case, we need not determine, as the judgment will be reversed upon another ground.
The next alleged error which we shall notice, is the admission of the dying declarations of the deceased. The admission of such declarations in any case is an exception to the general rule of evidence. It is only permitted in cases of homicide, and the exception stands upon the ground of the public necessity of preserving the lives of the community, by bringing manslayers to justice.1 1 Greenl., 193.
It is essential to the. admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death;2 but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears, in any mode, that they were made under that sanction, whether [345]*345it be directly proved by the express language of the declarator or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of declarant’s mind.1 1 Greenl., 195. The objection to tbeir admission in this case is, that it does not sufficiently appear, that, at the time, the dying declarar tions were made, the deceased was sufficiently impressed with a sense of his impending dissolution. Upon this point the evidence is, first, that of R O. Edwards, who testified, that on the night when the declarations were made, he told Frazier, the deceased, that he thought his deposition ought to be taken, as, in the opinion of witness, he must inevitably die before morning. The deceased replied, he thought so too. Afterwards deceased exclaimed, O Lord ! I shall die soon! His declarations were reduced to writing, read over to him twice, and signed by him. The attending physician was examined, who stated, that, in the preceding evening, he had held out some hopes of recovery to the deceased; but told him his chance was bad. The interview with Edwards was during the following night; the deceased lived some ten days afterwards. It seems to us that every requirement of the law was fully satisfied. The situation of the deceased, the opinions of those around him, his own solemn declarations, all show, that, at the time, he believed he was on the very threshold of death. In Rex. v. Mosley, 1 Moody Cr. Cases, 97, the declarations were made some eleven days before death, at -a time when the surgeon did not think the case hopeless, and told the patient so ; but the patient thought otherwise, and the declarations were received. 1 Greenl. 195, n.
We cannot yield our assent to the position that the introduction of such testimony violates the provision of the federal constitution, which secures to the accused the right “ to be confronted with the witnesses against him.’’ Such evidence has been admitted in many of our sister states, and excluded in none, so far as we know. It would be a perversion of its meaning to exclude the proof, when the prisoner himself has been the [346]*346guilty instrument of preventing the production of the witness by causing his death. This was expressly decided in Woodsides v. The State, 2 How., 656.
The objection that some of the questions propounded to the witnesses were leading, need not be the subject of remark. That point has already been sufficiently discussed in the case of Tourney.
An objection is taken to the excluding of an inquiry on the part of the defendant, as to his general character for peace or violence ; the court holding that the inquiry must be directed to the general character, without reference to particular traits. The rule is, that where evidence touching the general character of the party is admitted, it ought manifestly to bear reference to the nature of the charge against him. But this evidence of good character, in relation to the particular crime charged, seems to be only admissible in cases where the guilt of the party accused is doubtful. The prosecutor may introduce opposing testimony, and the presumption arising from such evidence of general character is said to be of, little weight. 1 Greenl., 65 ; 2 Starkie, 214; Roscoe, 89.
We shall now pass to the charges given by the court. The first given at the instance, is in these words: “Every homicide is presumed to be committed with malice aforethought; and it devolves upon the prisoner to prove the circumstances which excuse the act.” This charge is too broad and unrestricted. It contains only a part of the rule, as usually stated in the books, and omits the important addition, " unless they arise out of the evidence produced against him.” 1 Russ., 338; Foster, 255.
Every indictment for murder contains the charge, that the prisoner did “ feloniously, wilfully, and of his malice aforethought kill and murder the deceased.” The fact of killing, and the intent, must both concur to constitute the crime of murder. They are both charged by the state, and if, from the whole evidence in the cause, the jury doubt either of the fact of killing, or of the malice of the act, the prisoner is entitled to the benefit of such doubt, and to be either acquitted, or convicted of a crime of less grade than murder, according to the circumstances.
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Clayton, J.
This was an indictment for murder in the Circuit court of Hinds, which resulted iu the conviction of the defendant. A great number of errors have been assigned as causes of reversal.
-The first is, that there was error in overruling an application for a continuance upon the affidavit filed. Our statute upon this subject lays down a very explicit rule. It provides that upon every application for a continuance, the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or witnesses, in order that the court may judge of the materiality of such facts to the issue or issues in the case.1 H. & H., 610, § 37.
The continuance of a cause is matter resting in the sound discretion of the court, and an appellate tribunal will never interfere but with extreme reluctance and caution.2 To justify such interference, there must have been a palpable error committed, without the correction of which manifest injustice will be wrought. 5 Humphreys, 568; Bellew v. The State, 2 Rob. Virginia Rep. 849; 10 Leigh, 692; 4 Humph., 202.
[344]*344When the application for a continuance is made, the judge is supposed to know nothing of the testimony which will be adduced, he can therefore only determine the materiality of the facts stated in the affidavit by the consideration of what might be urged in the defence, if they should be established. His means of judging are less satisfactory at that stage than at the close of the trial. When a continuance has, in the opinion of counsel, been improperly refused, it is the regular course of practice to move for a new trial, after the verdict has been rendered, when the judge can see more clearly 1he bearing of the testimony sought to be introduced, and can have an opportunity of correcting his error, if convinced that he lias committed one. If he refuse the new trial, the bill of exceptions embodying the. whole testimony will furnish this court with the means of forming a correct conclusion. This is safer than merely to bring up the affidavit for a continuance, without all the other testimony in the cause. Whether the continuance was improperly refused in this case, we need not determine, as the judgment will be reversed upon another ground.
The next alleged error which we shall notice, is the admission of the dying declarations of the deceased. The admission of such declarations in any case is an exception to the general rule of evidence. It is only permitted in cases of homicide, and the exception stands upon the ground of the public necessity of preserving the lives of the community, by bringing manslayers to justice.1 1 Greenl., 193.
It is essential to the. admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death;2 but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears, in any mode, that they were made under that sanction, whether [345]*345it be directly proved by the express language of the declarator or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of declarant’s mind.1 1 Greenl., 195. The objection to tbeir admission in this case is, that it does not sufficiently appear, that, at the time, the dying declarar tions were made, the deceased was sufficiently impressed with a sense of his impending dissolution. Upon this point the evidence is, first, that of R O. Edwards, who testified, that on the night when the declarations were made, he told Frazier, the deceased, that he thought his deposition ought to be taken, as, in the opinion of witness, he must inevitably die before morning. The deceased replied, he thought so too. Afterwards deceased exclaimed, O Lord ! I shall die soon! His declarations were reduced to writing, read over to him twice, and signed by him. The attending physician was examined, who stated, that, in the preceding evening, he had held out some hopes of recovery to the deceased; but told him his chance was bad. The interview with Edwards was during the following night; the deceased lived some ten days afterwards. It seems to us that every requirement of the law was fully satisfied. The situation of the deceased, the opinions of those around him, his own solemn declarations, all show, that, at the time, he believed he was on the very threshold of death. In Rex. v. Mosley, 1 Moody Cr. Cases, 97, the declarations were made some eleven days before death, at -a time when the surgeon did not think the case hopeless, and told the patient so ; but the patient thought otherwise, and the declarations were received. 1 Greenl. 195, n.
We cannot yield our assent to the position that the introduction of such testimony violates the provision of the federal constitution, which secures to the accused the right “ to be confronted with the witnesses against him.’’ Such evidence has been admitted in many of our sister states, and excluded in none, so far as we know. It would be a perversion of its meaning to exclude the proof, when the prisoner himself has been the [346]*346guilty instrument of preventing the production of the witness by causing his death. This was expressly decided in Woodsides v. The State, 2 How., 656.
The objection that some of the questions propounded to the witnesses were leading, need not be the subject of remark. That point has already been sufficiently discussed in the case of Tourney.
An objection is taken to the excluding of an inquiry on the part of the defendant, as to his general character for peace or violence ; the court holding that the inquiry must be directed to the general character, without reference to particular traits. The rule is, that where evidence touching the general character of the party is admitted, it ought manifestly to bear reference to the nature of the charge against him. But this evidence of good character, in relation to the particular crime charged, seems to be only admissible in cases where the guilt of the party accused is doubtful. The prosecutor may introduce opposing testimony, and the presumption arising from such evidence of general character is said to be of, little weight. 1 Greenl., 65 ; 2 Starkie, 214; Roscoe, 89.
We shall now pass to the charges given by the court. The first given at the instance, is in these words: “Every homicide is presumed to be committed with malice aforethought; and it devolves upon the prisoner to prove the circumstances which excuse the act.” This charge is too broad and unrestricted. It contains only a part of the rule, as usually stated in the books, and omits the important addition, " unless they arise out of the evidence produced against him.” 1 Russ., 338; Foster, 255.
Every indictment for murder contains the charge, that the prisoner did “ feloniously, wilfully, and of his malice aforethought kill and murder the deceased.” The fact of killing, and the intent, must both concur to constitute the crime of murder. They are both charged by the state, and if, from the whole evidence in the cause, the jury doubt either of the fact of killing, or of the malice of the act, the prisoner is entitled to the benefit of such doubt, and to be either acquitted, or convicted of a crime of less grade than murder, according to the circumstances. The jury must be satisfied, that he is guilty of murder, before they [347]*347pronounce him so. This, by no means, excludes a resort to presumptions in certain cases. When the fact of killing, with all its attendant circumstances, is clearly proved, and the testimony either shows express malice, or that there was no malice at all, there is no room for presumption. But in cases where the killing is proved, and no accompanying circumstances appear in the evidence, the law presumes the killing was done maliciously. So, where the killing is proved, and the circumstances attending it are shown, though no express malice may appear from the proof, it may be presumed from some attending fact; as if a deadly weapon were used, the law presumes malice. So, if there be circumstances of barbarity and cruelty, the law presumes malice. These presumptions of law, if unopposed, may amount to full proof of the fact. They stand until the contrary is proved or until such facts are proved, as are sufficient to raise a contrary and stronger presumption. 1 Stark. Ev., 452; Coffee v. The State, 3 Yerg., 283; Woodsides v. The State, 2 How., 666. From the presumptions of law, and the whole evidence in the cause, as well as for the state, as for the accused, the jury must make up their verdict. In its definition of murder, our statute, instead of “ malice aforethought,” uses the words "premeditated design.” In legal effect we regard them as the same. 2 Va. Ca., 88.
The second charge given by the court is in these words: “ No trespass upon the personal property of another will authorize the killing of a man ; any such killing would be murder, if committed with a deadly weapon.” This charge was correct. The kind of weapon used in such cases, determines the intent, and fixes the degree of guilt. If it be a deadly weapon, the killing will be murder. Commonwealth v. Drew, 4 Mass., 396; State v. Tellers, 2 Hals.; Roscoe Cr. Tr., 718; 2 Stark. Ev., 524.
The third charge given is likewise free from objection. It corresponds very nearly with the definition of larceny at common law. To constitute the offense, the goods must have been wrongfully or fraudulently taken and carried away, with the intent to convert them to the taker’s own use, and make them his own property. If there be no such intention, it amounts to a trespass only, and not to a felony. If the taking be open, and in [348]*348the presence of the owner or of other persons, this carries with it evidence, that it is only a trespass. Rosc., 531, 536. The definition in our statute amounts to the same.
The fourth charge, which purports to give a definition of robbery, is not quite full enough. If the goods be taken either by violence, or by putting the owner in fear, it is sufficient to render the felonious taking a robbery. Rosc., 832. To the same effect is our statutory definition.
The fifth charge given on the part of the state, is likewise inaccurate in some degree. It is not enough to do away with the criminal intent, that there should be a mere false claim of property in the article stolen. But, if there be a fair, Iona fide claim of property or right in the prisoner the offense amounts but to a trespass. Rosc., 537, 829.
The first and third charges asked for by the counsel of the prisoner, have been already sufficiently elucidated in the remarks as to the admission of the dying declarations of the deceased. It is for the court to determine whether, under the circumstances, they are competent testimony; when admitted, it is for the jury to judge of the weight to be attached to them, precisely, as they judge of all other testimony.
The second charge requested on the part of the prisoner was given, and there is no complaint of it.
The fourth charge requested by the prisoner’s counsel, was properly refused. It has been sufficiently explained in what has been said of the second charge upon the part of the state. A mere trespass, or a larceny, will not justify an intentional killing. Our statute declares homicide to be justifiable, when committed in resisting any attempt to murder such person, or to commit any felony upon him or her, or upon, or in any dwelling house, in which such person shall be. H. & H., 694.
The fifth and sixth instructions asked on the part of the prisoner were properly refused. They contained mere abstract propositions, bearing but remotely, if at all, upon the case, and their relevancy is not perceived. They propound a rule laid down by Starkie, in reference to cases dependent entirely upon circumstantial proof ; a rule, however, which does not apply to a case in which there is positive proof.
[349]*349The seventh charge asked for by defendant, was also properly refused. A portion of it consisted only of abstract propositions, having no perceptible connection with the testimony. If there be any part not liable to this objection, it is that which asks the court to instruct the jury, “ that if they believe the deceased had taken the horse of the accused, and was riding him off beyond the reach of probable recapture, and that the accused, after having repeatedly hailed him, slew the trespasser, he is not guilty of murder.” If, under such circumstances, the killing was with a deadly weapon, we have already seen it would be murder. We have thus adverted to nearly all the prominent points made in the argument, in order to have the principles settled by which the next trial will be governed.
The judgment is reversed, and cause remanded for another trial.