Appellant, in the trial court, applied for a con-: tinuance because of the absence of witnesses whose testimony he alleged to be material to his defense. His application was overruled, and after trial and conviction he moved for a new trial, one of the grounds of his motion being that the court erred in refusing his application for continuance. .The action of the court upon the application for continuance and the motion for new trial are assigned as error, and counsel for appellant presents as his first proposition, under this assignment, that the statute giving discretionary power to the trial judge to grant or refuse a continuance, and also discretionary power to grant or refuse a new trial, is unconstitutional and void. The argument advanced by counsel in support of this proposition is that such power deprives the citizen of the right to have compulsory process for his-witnesses, and of the right of trial by jury.
We have been much interested by the able brief and argument of counsel for appellant upon this question, and have maturely considered the same. Without entering upon an elaborate discussion of the subject, we will briefly state the conclusions at which we have arrived. 1. The statute claimed to be unconstitutional (Code Crim. *119Proc., art. 560, subdivision 6) does not deprive the accused of the right to have compulsory process for his witnesses (Bill of Rights, sec. 10), nor does it impair such right. 2. It does not deprive the accused of the right of trial by jury. (Bill of Rights, sec. 15.) 3. The Legislature has full power to regulate continuances and new trials. There is no provision in the Constitution which denies or limits such powers.
In the case at bar, the accused had compulsory process for his witnesses, and had a trial by jury. He was not deprived of either of those constitutional rights. We are of the opinion that the court did not err in refusing his application for a continuance, nor in refusing to grant him a new trial. Conceding that the absent testimony was material, we think the trial judge was well warranted in holding that it was not probably true. When considered with reference to the evidence adduced on the trial, it could not be reasonably contended that the facts stated in the application for continuance were probably true. There has been no abuse of the discretionary power of the trial judge in this matter, as far as we can perceive from the record before us.
It is contended by appellant’s counsel that article 800 of the Code of Criminal Procedure is unconstitutional; that it conflicts with section 13 of the Bill of Rights, which forbids excessive fines and cruel or unusual punishments. We are unable to see the force of this position. Confinement in the penitentiary for the crime of horse theft cannot be regarded as either excessive, cruel or unusual. This offense has always been thus punished in this State, and in some countries it is even punished capitally. In providing for successive imprisonments upon different convictions, this provision of the Code is in harmony with the common law. Mr. Wharton says: “ When a term of imprisonment is still unexpired, the prisoner being in custody, the proper course is to appoint the second imprisonment to begin at the expiration of the first; and a sentence to this effect is sufficiently exact. The same order is taken when there are simultaneous convictions, the sentence prescribing that the term on the second offense is to begin on the expiration of the term assigned the first offense.” (Whart. Or. PL & Pr., § 932.) It is not necessary, as in the case of a cumulative punishment, to allege in the indictment for the second offense the conviction in the first. In this case the defendant, at the same term of the court, had been convicted and sentenced for a separate and distinct theft from the one charged here, and it was proper to order that the imprisonment in this case should commence at the expiration of the term for which the defendant had been sentenced in the prior case.
*120Exceptions were saved to the admission of certain testimony offered by the State and admitted over the objections of the defendant. This testimony was admissible, in our opinion, for the purpose of identifying the defendant as one of the parties who committed the theft, and of showing that he knew and concurred in the fraudulent intent of his companion in taking the horses. It was not evidence to prove the taking of the particular horse charged in this indictment to have been stolen, and it would have been proper for the court to have instructed the jury as to the limits to which their consideration of it should be confined. But no exceptions were made to the charge because of this omission, and no additional charge upon this point was requested, and it is apparent to us from the other evidence in the case, that the defendant’s rights have not probably been prejudiced by this oversight of the learned judge.
No exceptions were made to the charge of the court. Some special charges were requested, which were refused. No exception was reserved to this action of the court. We have carefully considered the charge in connection with the evidence in the case, and cannot perceive wherein it is defective in any material respect. It is, in our opinion, a fair and correct statement of the law of the case.
We find no error in the record for which the judgment should be reversed, and it is therefore affirmed.
Affirmed.
[Opinion delivered November 12, 1884.]