JACKSON, Chief Justice.
There are thirty grounds taken in the motion for a new trial, and on each of them error is assigned in this voluminous record. For want of time to examine them all with necessary care during the last term, the case was held up for further investigation during the vacation. These grounds of error may be classified under three general heads: first, errors assigned upon the rulings of the presiding judge preliminary to the trial on the merits; secondly, those in regard to the competency of witnesses and their testimony; and, thirdly, those respecting the charge and refusals to charge.
A motion was made by the defendant to continue the case, and error is assigned as well on the refusal to continue as on the mode of trying the issue of continuance.
1. The showing was made in writing, and the point is made that in such cases the law will not allow a counter-showing. The statute permitting a counter-showing is not restricted to the showings in parol, but is general, and embraces both kinds, written and verbal. Code, §3531. If confined to a reply to parol showings, the law would be worthless; because no matter how simple the ground, [25] it would be reduced to writing, and then it could not be controverted.
2. It is objected again, that the court should not have permitted the state to show, by counter-showing, that' defendant’s witness would not testify as defendant Had sworn he would. We see nothing in the point. It is true that other witnesses, on a counter-showing, ought not to be allowed to testify that the facts which the absent witness, if present, would swear to, were not true, because that would be to try the whole case; but the principle does not go the extent that by counter-showing it may not be proved that the witness, if present; would not testify as defendant swore he would.
The contradiction in ‘ such case is not of the absent witness, but of the defendant. It denies not what the absent witness would swear, but what the defendant says he would swear. It is a mere contradiction of defendant, such as that he did not subpoena the witness, or gave him leave to be absent, or that he is out of the state, or dead, or was not present when the crime was committed. The distinction is clear, and takes the point out of the ruling in 62 Ga., 362.
3. Continuances are addressed to the sound discretion of the court, and should not be disturbed by a reviewing court, except where discretion is abused in granting or refusing them, and injustice done. We see no error bathe third ground. Code, §3531.
4. We think, as matter of practice, that the court was right to confine the cross-examination of state’s witnesses on the counter-showing to the facts sworn to by them. If they knew outside facts, wholly independent of what they swore for the state, their affidavits thereto could be easily procured by the defendant. So that he was not hurt, even if the court, as matter of practice, was wrong. But it was right; because, if the door were opened wider, a world of prolixity and confusion, and a labyrinth of cross-questions, would enter and embarrass.
[26] So there is no error in the ninth ground, and this concludes the questions on the motion to continue. Excitement is on the same plane of discretion as other grounds, "and the policy and public necessity of expediting trials of criminals which led the legislative mind to provide for extraordinary terms of court therefor, would seem to caution courts not to procrastinate on account of public excitement or other cause, where a fair trial can be had. There are in the record affidavits and counter-affidavits on the subject of excitement, and in regard to the accessibility of counsel to their clients in jail, and also in respect to their accessibility to testimomy taken before the inquest and committing court, somewhat conflicting and contradict.ory, but the presiding judge examined the subject with much patience and at great length, and has settled it. From a re-examination of it here, so far as the record can and does bring here witnesses and their evidence, we see no abuse of discretion, but an earnest desire to administer the law and to mete out the measure of equal justice to the state and the defendant.
5. The special plea in abatement rests on the grounds that two of the grand jury had formed and expressed opinions adverse to the prisoner; that the court had excused wrongfully grand jurors, and thus made it necessary to summon five tales grand jurors; that the solicitor general pro tern., who signed the bill of indictment, was the ordinary of the county, and also of counsel for the state, and that the whole grand jury and petit jury is illegal, because there was no legal precept directed to the sheriff to summon them to attend the court. On demurrer to this plea to abate the prosecution for want of a sufficient accusation to put the defendant on trial, the demurrer was sustained, and the plea was stricken. On this action of the court error is assigned.
It will be observed that there is no exhibit to the plea of any precept at all, so that the court can pass on its legality. The allegation is “that no precept has ever [27] been issued or ordered, as the law directs, for the summoning or attendance of jurors at this special term, nor has any juror, either grand or petit, been summoned or sworn under a precept as required by law.”
The above is not an allegation that there was no precept at all, but none such as the law directs or requires. We cannot pass upon it unless we saw it. Under our law, it is a very simple thing. It must contain the names of the persons drawn, and that is all the statute seems to require. Code, §3913. When the clerk hands .that list to the sheriff, it is his duty to serve the persons, named. We presume this was done. 34 Ga., 270. Nothing to the contrary appears of record here. It is doubtful whether it be important to enquire about such matters at all. They relate, it appears, not to the securing of a fair and impartial jury for the defendant as much as to the mode of bringing the jurors to the court, and equalizing, by rotation, their duties among themselves. Such seems to be the ruling in 20 Ga., 60. See also 14 Ga., 43, and dissenting opinion in 57 Ga., 427. Certainly we will not enquire into what excuses any of the grand jurors made to the court for not serving, and whether good excuses or bad, or none at all; nor will we enquire into the necessity of summoning tales grand jurors. These ..Matters must be left with the superior courts ; and if, on' the trial of the criminal, all such details were open to investigation, the trial would be interminable.
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JACKSON, Chief Justice.
There are thirty grounds taken in the motion for a new trial, and on each of them error is assigned in this voluminous record. For want of time to examine them all with necessary care during the last term, the case was held up for further investigation during the vacation. These grounds of error may be classified under three general heads: first, errors assigned upon the rulings of the presiding judge preliminary to the trial on the merits; secondly, those in regard to the competency of witnesses and their testimony; and, thirdly, those respecting the charge and refusals to charge.
A motion was made by the defendant to continue the case, and error is assigned as well on the refusal to continue as on the mode of trying the issue of continuance.
1. The showing was made in writing, and the point is made that in such cases the law will not allow a counter-showing. The statute permitting a counter-showing is not restricted to the showings in parol, but is general, and embraces both kinds, written and verbal. Code, §3531. If confined to a reply to parol showings, the law would be worthless; because no matter how simple the ground, [25] it would be reduced to writing, and then it could not be controverted.
2. It is objected again, that the court should not have permitted the state to show, by counter-showing, that' defendant’s witness would not testify as defendant Had sworn he would. We see nothing in the point. It is true that other witnesses, on a counter-showing, ought not to be allowed to testify that the facts which the absent witness, if present, would swear to, were not true, because that would be to try the whole case; but the principle does not go the extent that by counter-showing it may not be proved that the witness, if present; would not testify as defendant swore he would.
The contradiction in ‘ such case is not of the absent witness, but of the defendant. It denies not what the absent witness would swear, but what the defendant says he would swear. It is a mere contradiction of defendant, such as that he did not subpoena the witness, or gave him leave to be absent, or that he is out of the state, or dead, or was not present when the crime was committed. The distinction is clear, and takes the point out of the ruling in 62 Ga., 362.
3. Continuances are addressed to the sound discretion of the court, and should not be disturbed by a reviewing court, except where discretion is abused in granting or refusing them, and injustice done. We see no error bathe third ground. Code, §3531.
4. We think, as matter of practice, that the court was right to confine the cross-examination of state’s witnesses on the counter-showing to the facts sworn to by them. If they knew outside facts, wholly independent of what they swore for the state, their affidavits thereto could be easily procured by the defendant. So that he was not hurt, even if the court, as matter of practice, was wrong. But it was right; because, if the door were opened wider, a world of prolixity and confusion, and a labyrinth of cross-questions, would enter and embarrass.
[26] So there is no error in the ninth ground, and this concludes the questions on the motion to continue. Excitement is on the same plane of discretion as other grounds, "and the policy and public necessity of expediting trials of criminals which led the legislative mind to provide for extraordinary terms of court therefor, would seem to caution courts not to procrastinate on account of public excitement or other cause, where a fair trial can be had. There are in the record affidavits and counter-affidavits on the subject of excitement, and in regard to the accessibility of counsel to their clients in jail, and also in respect to their accessibility to testimomy taken before the inquest and committing court, somewhat conflicting and contradict.ory, but the presiding judge examined the subject with much patience and at great length, and has settled it. From a re-examination of it here, so far as the record can and does bring here witnesses and their evidence, we see no abuse of discretion, but an earnest desire to administer the law and to mete out the measure of equal justice to the state and the defendant.
5. The special plea in abatement rests on the grounds that two of the grand jury had formed and expressed opinions adverse to the prisoner; that the court had excused wrongfully grand jurors, and thus made it necessary to summon five tales grand jurors; that the solicitor general pro tern., who signed the bill of indictment, was the ordinary of the county, and also of counsel for the state, and that the whole grand jury and petit jury is illegal, because there was no legal precept directed to the sheriff to summon them to attend the court. On demurrer to this plea to abate the prosecution for want of a sufficient accusation to put the defendant on trial, the demurrer was sustained, and the plea was stricken. On this action of the court error is assigned.
It will be observed that there is no exhibit to the plea of any precept at all, so that the court can pass on its legality. The allegation is “that no precept has ever [27] been issued or ordered, as the law directs, for the summoning or attendance of jurors at this special term, nor has any juror, either grand or petit, been summoned or sworn under a precept as required by law.”
The above is not an allegation that there was no precept at all, but none such as the law directs or requires. We cannot pass upon it unless we saw it. Under our law, it is a very simple thing. It must contain the names of the persons drawn, and that is all the statute seems to require. Code, §3913. When the clerk hands .that list to the sheriff, it is his duty to serve the persons, named. We presume this was done. 34 Ga., 270. Nothing to the contrary appears of record here. It is doubtful whether it be important to enquire about such matters at all. They relate, it appears, not to the securing of a fair and impartial jury for the defendant as much as to the mode of bringing the jurors to the court, and equalizing, by rotation, their duties among themselves. Such seems to be the ruling in 20 Ga., 60. See also 14 Ga., 43, and dissenting opinion in 57 Ga., 427. Certainly we will not enquire into what excuses any of the grand jurors made to the court for not serving, and whether good excuses or bad, or none at all; nor will we enquire into the necessity of summoning tales grand jurors. These ..Matters must be left with the superior courts ; and if, on' the trial of the criminal, all such details were open to investigation, the trial would be interminable.
The objection in the plea that two members of the grand jury who found the bill true, had formed and expressed an opinion, came too late. If there can beany objection to such, a grand juror, it must be made before he acts on the- case" — not before the final verdict, but before the finding- the bill. 3 Wendell, 313 ; see op. of Savage, C. J., and Márcy, J., and note to the case. It is too late to move Pn. the trial before the traverse jury. The truth is that it is matter of comparatively little importance that grand jurors should not have formed opinions, because [28] they only put the party on trial, and that after hearing only one side of the case. If, however, it be deemed important in a particular case to fight the prosecution in limine, diligence requires that the challenge be made before the bill is found. In this case the party could have done so. In the case supra from New York, the defendant was not recognized, and it was, therefore, doubtful that the defendant knew that the grand jury that found the bill would pass on his case, yet the court held the point too late. See also 6 Wendell, 386; 6 Serg & Rawls, 395; 1 Bish. Crim. Pro., 881.
The only remaining ground of the plea is the fact that the solicitor,general pro tem., who merely prepared and signed the bill of indictment, was the ordinary of the county and of counsel for the prosecution. Of course no man by our fundamental law may hold two offices of honor and profit at the same time, and the ordinary would be disqualified for election as solicitor general. At least he would be put to election of one or the other office ; but we do not think that the prohibition would extend to the mere act of preparing and signing an indictment pro tem. in the absence of the regular solicitor general, and that this fact should quash the proceeding. As to his being counsel for the prosecution, it strikes us as of no consequence. Often associate counsel draw the bill of indictment. The solicitor general pro tem. here was appointed by the atourt for this specific duty until the arrival of that permanent officer, and his signature to the bill of indictment alter its preparation is the merest technicality, and cannot vitiate the entire proceeding. It may be doubted whether any signature 'is necessary of any solicitor general See Code, §4628 et seq. So the fo.urth ground was properly overruled. ' (
6. The challenge to the array of forty eight traverse jurors is based on the same ground in regard to the want of a legal precept, and the views presented above will cover this point. It is not stated what sof t of paper [29] or list was presented by the clerk to the sheriff. ■ There must have been some sort of list or the jurors would not have been summoned and in attendance. The ruling in the 20th and 34th Ga. supra, must also cover this the fifth ground of the motion.
7. The sixth ground makes the point that a principal in the second degree cannot be tried until the case against the principal in the first degree has been disposed of. However it might be in the case of a mere accessory, a principal in the second degree may be tried before a principal in the first degree. 17 Ga., 194. Of that offence this party was found guilty, and it does not matter, on a motion for a new trial of that issue, that he was also indicted as accessory.
8. The state need not elect on which count to try. 58 Ga., 577.
9. The judgment of the court as a trior will not be reviewed by this court; its decision below is final, and no ground for a new trial. 47 Ga., 598, et seq.
10. The middle name of a juror, or the initial of it, is-immaterial. 8 Ga., 173, et seq.
11. The transaction in respect to the Donaldson money was admissible to show motive. The accused was interested in removing deceased if she knew facts connecting him with the larceny of that money. The court did not err in admitting Sally Lambert’s evidence thereon.
12. 13. The testimony of Mrs. Bailey and of John Bailey, touching the unfriendly relations between the latter and defendant, considered in connection with his spending the night at Bailey’s house during the res gestae (or near it) of the homicide, we think admissible, as well as his conduct and conversation while there. The facts sworn to may be mere circumstances, but often slight circumstances point the path which truth took, just as the bending straw will show the course of the wind as certainly as the prostrate oak the track of the hurricane. As slight circumstances they are relevant, and no error •Was committed in not ruling them out.
[30] 14. Two or three- distinct legal points seem to be made in the 14th ground of the motion. If the written evidence, taken down by the magistrate, on the charge of cow-stealing by deceased, is the best evidence, and must ,be accounted for before parol proof can be admitted, then ;the point is made that the writing has not been accounted ;for sufficiently. The presiding judge held that it had ibeen sufficiently accounted for, and the record does not ■■disclose error in his judgment on that matter. Besicjes, rthe parol evidence of the statement of deceased was admitted as made in the presence and hearing of defendant. It would have been legal evidence, therefore, if not under oath at all,-and could have been proven* by parol. Is the rule narrower because it was a statement under oath ? Besides, it is by no means certain that the mere substance of the testimony taken down in a case like this, is in law better evidence than the recollection of a competent and reliable witness. The relevancy of the evidence to this .case has been already discussed. It had reference to a recent contest between the deceased and the parties charged with her homicide, and intended to show cause or motive for the deed, which is-always relevant. On the general subject of the admissibility of parol evidence, and of the written evidence and value of each in such cases, see 54 Ga., 156; 63 Id., 600.