By the Court —
Jenkins, J., delivering the opinion.
After verdict against the prisoner’, he moved for a new trial in the Court below on several grounds, which motion was overruled. The prisoner excepted to that judgment and alleges error upon each ground of the motion so overruled.
The two first grounds will be considered together, being predicated upon rejected applications for a continuance of the cause, when called for trial.
1. It appears from the record that the prisoner made two separate attempts to effect a continuance of his cause, the,one immediately succeeding the other, or, in other words, he presented in support of his motion to continue, two' distinct specifications in writing of the grounds relied upon, the second not having been presented until judgment had Teen pronounced upon the motion, as sustained by the first written showing. It further appears, that all of the grounds taken in the second specification existed, and must have been known to the prisoner, when his motion was made. No exception is taken to the refusal of the continuance asked, in so far as it overruled the grounds presented in the first specification. .The insufficiency of those grounds seems to be tacitly admitted by the plaintiff in error. The question we are to consider is, whether the Court erred in overruling the motion on the grounds'" taken in the second specification.
We do not deem it necessary to look into the details of this second specification, nor to inquire, whether or not, had it been presented originally before a judgment upon the motion to continue had been evoked and pronounced, it should have been held sufficient. It was not overruled.m the Court below because of its insufficiency, taken per se. By the Act approved 24th December, 1821, T. R. R. Cobb’s Digest, 460, the Judges^f the Superior Courts of this State are required, [215]*215(after the next election of Judges,) to convene annually at the seat of Government, “ for the purpose of establishing uniform rules of practice throughout the several circuits of this State.” And it is made the duty of the Judges so convening to notify absent Judges of such rules, or alterations of rules, as may be so established.
In the passage of this Act it was the manifest intention of the Legislature to refer to the sound discretion of the Judges, educated in the science and experienced in the practice of the law, those numerous minor, yet important, regulations, necessary to facilitate the proceedings of the Courts, to prevent unnecessary delays, and to forestall undue advantages which the ingenuity of one party might secure to him over the other. We think this discretion was wisely and properly reposed. It was not reposed in each Judge, severally, to be exercised in the circuit in ^hich he had been specially elected, but in a convention-of all the Judges, bringing together their wisdom and experience separately acquired, a discretion to be exercised by the majority for the government of all and each. It was manifestly the intention of the Legislature, that each Judge should conform to the rules of practice thus established, whether they chanced to meet his approval or not, otherwise one great object distinctly stated in the Act, “ the establishment of uniform rules of practice in the several circuits,” must fail.
In obedience to this Act, the Judges of the Superior Court have assembled and established, and from time to time altered rules of practice, as well known to the profession as the laws of the land. The 53d rule is in these words: “All grounds of motion for non-suit in arrest of judgment, and for continuance, etc., must be urged and insisted upon at once. And after a decision upon one or more grounds, no others after-wards urged will be heard by the Court.” ■ We understand the learned Judge in the Court below to have placed his refusal to entertain the grounds presented in the second showing, made in support of the motion for a continuance, upon this rule of practice. There can be no question that the rule embraces the case and sustains the decision.
[216]*216We must not be understood as holding, that this rule properly construed denies to the Judges of the Superior Court, severally, the discretion in every conceivable aspect of a case, to continue it after one application refused to the same party.
If this were an Act of the Legislature instead of a rule of Court, it would be open, like all other statutes, to construction, and whenever a question arose under it, an important point to be considered would be, whether the case at bar came within its purview, within its spirit and meaning. For instance, a case might arise in which a fact relied upon for continuance did not exist at the time when a motion, previously decided, was made, as the sudden and violent seizure by disease of an important witness actually in attendance on the Court, or the illegal and willful departure of such a witness, with the avowed purpose oftwithholding his testimony, or even of ignorance of the existence of a sufficient ground, (afterwards discovered,) under circumstances exonerating the applicant from the imputation of fraud or laches, or other like cases. *
In all such cases, however, it is most clear that the affidavit of the party presenting additional grounds, after motion refused, should state the causes relied upon to relieve him from the operation of the rule. The rule itself is not to be capriciously or carelessly infracted. We see nothing whatever to withdraw this case from its operation. To have disregarded it would have involved a very daring exercise of discretion. We cannot condemn as error simple obedience to a rule, having the force of law, in a case equally within its letter and its spirit, still less should w,e be justified in doing so where, as in this case, the record informs us, that there were circumstances which satisfied the presiding Judge of a want of good faith, on the part of the prisoner, in thus presenting his application for co'ntinuance.
It would seem, from the second ground taken in the motion for a new trial, that there had been a third attempt to procure a continuance, but it is not so stated in the bill of exceptions, and is expressly ignored by the Judge. In any [217]*217event, however, such third attempt must have shared the fate of the second, and for the same reason.
The next exception is, that the Court refused the motion for a new trial, on the ground that the yerdict is contrary to law and to the evidence.
2. The evidence discloses a previous grudge entertained by the plaintiff in error against the deceased; threats uttered by the former against the latter; a clear intimation of an intention to use a deadly weapon against him when opportunity should serve, and prisoner’s acknowledgement of one previous movement towards reeking his threatened vengeance, postponed upon second thought from prudential considerations, with a superadded declaration of continuing intention to execute it. It also appears that the plaintiff in error and his father, (a co-defendant in the bill of indictment,) on the occasion of the killing, passed by the deceased, then stopped, and after a short colloquy returned to him;
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By the Court —
Jenkins, J., delivering the opinion.
After verdict against the prisoner’, he moved for a new trial in the Court below on several grounds, which motion was overruled. The prisoner excepted to that judgment and alleges error upon each ground of the motion so overruled.
The two first grounds will be considered together, being predicated upon rejected applications for a continuance of the cause, when called for trial.
1. It appears from the record that the prisoner made two separate attempts to effect a continuance of his cause, the,one immediately succeeding the other, or, in other words, he presented in support of his motion to continue, two' distinct specifications in writing of the grounds relied upon, the second not having been presented until judgment had Teen pronounced upon the motion, as sustained by the first written showing. It further appears, that all of the grounds taken in the second specification existed, and must have been known to the prisoner, when his motion was made. No exception is taken to the refusal of the continuance asked, in so far as it overruled the grounds presented in the first specification. .The insufficiency of those grounds seems to be tacitly admitted by the plaintiff in error. The question we are to consider is, whether the Court erred in overruling the motion on the grounds'" taken in the second specification.
We do not deem it necessary to look into the details of this second specification, nor to inquire, whether or not, had it been presented originally before a judgment upon the motion to continue had been evoked and pronounced, it should have been held sufficient. It was not overruled.m the Court below because of its insufficiency, taken per se. By the Act approved 24th December, 1821, T. R. R. Cobb’s Digest, 460, the Judges^f the Superior Courts of this State are required, [215]*215(after the next election of Judges,) to convene annually at the seat of Government, “ for the purpose of establishing uniform rules of practice throughout the several circuits of this State.” And it is made the duty of the Judges so convening to notify absent Judges of such rules, or alterations of rules, as may be so established.
In the passage of this Act it was the manifest intention of the Legislature to refer to the sound discretion of the Judges, educated in the science and experienced in the practice of the law, those numerous minor, yet important, regulations, necessary to facilitate the proceedings of the Courts, to prevent unnecessary delays, and to forestall undue advantages which the ingenuity of one party might secure to him over the other. We think this discretion was wisely and properly reposed. It was not reposed in each Judge, severally, to be exercised in the circuit in ^hich he had been specially elected, but in a convention-of all the Judges, bringing together their wisdom and experience separately acquired, a discretion to be exercised by the majority for the government of all and each. It was manifestly the intention of the Legislature, that each Judge should conform to the rules of practice thus established, whether they chanced to meet his approval or not, otherwise one great object distinctly stated in the Act, “ the establishment of uniform rules of practice in the several circuits,” must fail.
In obedience to this Act, the Judges of the Superior Court have assembled and established, and from time to time altered rules of practice, as well known to the profession as the laws of the land. The 53d rule is in these words: “All grounds of motion for non-suit in arrest of judgment, and for continuance, etc., must be urged and insisted upon at once. And after a decision upon one or more grounds, no others after-wards urged will be heard by the Court.” ■ We understand the learned Judge in the Court below to have placed his refusal to entertain the grounds presented in the second showing, made in support of the motion for a continuance, upon this rule of practice. There can be no question that the rule embraces the case and sustains the decision.
[216]*216We must not be understood as holding, that this rule properly construed denies to the Judges of the Superior Court, severally, the discretion in every conceivable aspect of a case, to continue it after one application refused to the same party.
If this were an Act of the Legislature instead of a rule of Court, it would be open, like all other statutes, to construction, and whenever a question arose under it, an important point to be considered would be, whether the case at bar came within its purview, within its spirit and meaning. For instance, a case might arise in which a fact relied upon for continuance did not exist at the time when a motion, previously decided, was made, as the sudden and violent seizure by disease of an important witness actually in attendance on the Court, or the illegal and willful departure of such a witness, with the avowed purpose oftwithholding his testimony, or even of ignorance of the existence of a sufficient ground, (afterwards discovered,) under circumstances exonerating the applicant from the imputation of fraud or laches, or other like cases. *
In all such cases, however, it is most clear that the affidavit of the party presenting additional grounds, after motion refused, should state the causes relied upon to relieve him from the operation of the rule. The rule itself is not to be capriciously or carelessly infracted. We see nothing whatever to withdraw this case from its operation. To have disregarded it would have involved a very daring exercise of discretion. We cannot condemn as error simple obedience to a rule, having the force of law, in a case equally within its letter and its spirit, still less should w,e be justified in doing so where, as in this case, the record informs us, that there were circumstances which satisfied the presiding Judge of a want of good faith, on the part of the prisoner, in thus presenting his application for co'ntinuance.
It would seem, from the second ground taken in the motion for a new trial, that there had been a third attempt to procure a continuance, but it is not so stated in the bill of exceptions, and is expressly ignored by the Judge. In any [217]*217event, however, such third attempt must have shared the fate of the second, and for the same reason.
The next exception is, that the Court refused the motion for a new trial, on the ground that the yerdict is contrary to law and to the evidence.
2. The evidence discloses a previous grudge entertained by the plaintiff in error against the deceased; threats uttered by the former against the latter; a clear intimation of an intention to use a deadly weapon against him when opportunity should serve, and prisoner’s acknowledgement of one previous movement towards reeking his threatened vengeance, postponed upon second thought from prudential considerations, with a superadded declaration of continuing intention to execute it. It also appears that the plaintiff in error and his father, (a co-defendant in the bill of indictment,) on the occasion of the killing, passed by the deceased, then stopped, and after a short colloquy returned to him; that the father sought a controversy with deceased, and struck him; that the plaintiff in error, standing by, did not interpose until the deceased had returned the blow received from his father, and then, instead of attempting to separate them, and prevent further conflict, inflicted a blow upon the head of deceased, with an instrument, and with a degree of violence, very likely to produce death, when aimed at the head, and not lilcely so to do if aimed at any other portion of the body; that deceased having been felled to the ground _by this blow, the father of the plaintiff in error threw himself upon his person, and continued to beat him, plaintiff in error standing idly by until another had come to the rescue and separated the combatants.
We are not surprised that in all this the jury found abundant evidence of express malice, on the part of the plaintiff in error, of a conspiracy between father and son against the deceased, and that the mortal blow (not necessary in defence of the father) was inflicted with intention to kill the deceased. In these facts the law recognizes all the ingredients of the crime of murder, and we should be obstructing the administration of public justice by interposing on this ground.
[218]*2183. Lastly, the charge of the Court is excepted to, and the exception goes not to any rule of law laid down for the government of the jury, but to an illustration, by way of example, employed in the course of the charge. Following a previous illustration, the Judge said, “or, in the case put by the Solicitor General, if a man in a crowded thoroughfare, with a reckless disregard of human life, fire a gun at a bird, in the direction of the crowd, at the manifest risk of killing some human being, although he may have had no particular malice against any one in the crowd, and no positive intention to take the life of any individual, yet if he killed a human being instead of the bird, under such circumstances it is murder.” This was in illustration of the principle that there may be cases wherein homicide would be murder, though there may have been no positive intention to take the life of the deceased.
Lid we hold that the conclusion arrived at by the Court, in the fictitious case of the bird and the crowd, was erroneous, it would be difficult to conceive how it was calculated to prejudice the cause of the prisoner. Had the Court, in the supposed case, charged the jury that the killing of a man instead of the bird would not have been murder, no intelligent jury would have found in that charge authority for acquitting the prisoner in the case at bar.
The supposed and the real cases were not at all analogous.' The prisoner unquestionably aimed at the man he struck, and at the only part of his pérson probably fatally vulnerable with the instrument used, and' with a degree of force which crushed both the instrument and the skull stricken. Whether he would have been a whit safer, in legal contemplation, had he shot at a bird flying or perched between him and a crowd of men, within deadly range of his gun, and killed a man instead, may be considered whenever the case shall arise. It is enough that the illustration used was not calculated to mislead the jury, and in our opinion did not mislead them. So far as the plaintiff in error is concerned, we think the law has but had its course. Beyond his ease, we are not called on to review the verdict.
Let the judgment be affirmed.'