[This case was argued at the last term, and the decision reserved.]

1. A counter-showing may be made to a motion to continue a case,
whether in writing or by parol.

2. While on a counter-showing to a motion for a continuance on ac-
count of the absence of a witness it is not permissible to show that
the facts which the absent witness would swear, if present, are not
true, yet it may be shown that the absent witness would not in fact
give such testimony as the movant attributes to him. Such testi-
mony tends to contradict the party moving for a continuance, not
the absent witness.

3. Motions for a continuance are addressed to the sound discretion of
the court, and his ruling will not be disturbed by a reviewing court,
unless such discretion be abused.

4. Where affidavits have been introduced by way of counter-showing
to a motion for continuance, the cross-examination of the witnesses
so swearing should be limited to the subject matter embraced in the
affidavits, and not be left wholly unrestricted.

(a.) If they knew facts of importance to movant not embraced in their

*Justice Speer's term of office having expired, Justice Hall succeeded him. He began

to preside January 8th, 1883.

118 43

118 707

63

11

125 299

Williams vs. The State.

original affidavits, additional affidavits could easily be procured to support the motion.

5. Where error is assigned in overruling a plea in abatement, based on the ground that the grand jurors who found the true bill and the traverse jurors who tried the case had not been legally summoned, because "no precept has ever been issued or ordered as the law directs for the summoning or attendance of jurors," such precept as was in fact issued should be set out, that the court may judge of its legality. The precept required by law is very simple; and in the absence of anything to show the contrary, service will be presumed when the clerk hands the list to the sheriff.

(a.) Is the mode of equalizing jury duty, which does not effect the impartiality of those summoned, a proper matter for plea in abatement? Quære.

(b.) This court will not inquire into the legality of excuses made by grand jurors who were summoned at the time the true bill was found, on exception to the overruling of a motion for new trial under such indictment.

(c.) If a defendant in a criminal case can except to a grand juror at all,

on the ground that he has formed and expressed an opinion, it should be done before the true bill is found, and not on the trial thereunder. Certainly so where the defendant had notice of the pending consideration of his case by the grand jury by reasons of having been previously placed under bond.

(d.) That the ordinary of the county acted as solicitor pro tempore in drawing and signing an indictment, is not good ground for a plea in abatement; neither is it that such solicitor pro tempore was the employed counsel for the prosecution of the case.

6. Where jurors had been summoned through the instrumentality of the clerk and sheriff, a challenge to the array on the ground that no legal precept had been issued, and served, was properly overruled, where it did not appear what sort of precept had in fact been issued and served, or that there had been none at all. 7. A defendant in a criminal case charged as principal in the second degree, may be tried before the principal in the first degree. (a.) Where the verdict found the defendant guilty as a principal in the second degree, it does not matter that he was also charged as an accessory in another count.

8. Where an indictment charged a defendant in different counts with murder as principal in the first degree, as principal in the second degree, and as accessory before the fact, the state was not obliged to elect on which count it would try him.

9. The judgment of the court as a trior is final, and will not be reviewed by this court on a motion for a new trial.