By the Court. —
Warner, J.delivering the opinion.
There are two grounds of error assigned upon the record, to the decision of the Court.below :
1st. That the Court refused a continuance to the defendant, of his cause, upon the showing made by him.
2d. Because the Court admitted testimony, as to the injury done to the father of the deceased, by the defendant, at the time of the alleged homicide.
[1.] It appears from the record, that the defendant made a motion for the continuance of his cause, on the ground of the absence of two material witnesses, who had been subpcen aed, and were not in attendance, residing in a distant County. The Court postponed the trial, and ordered process to issue to compel the attendance of the witnesses, for the benefit of the defendant. The witnesses were brought into Court, and were sworn on the trial, in behalf of the defendant. The trial was postponed, and the defendant had the benefit of the compulsory process of the Court, to compel the attendance of his absent witnesses, and had the benefit of their testimony in his behalf, on his trial. The cause was continued by the Court, so as to enable the defendant to have the benefit of the testimony of his absent witnesses; and that was all which he could reasonably require, under the law.
[2.] When the absent witnesses were brought into Court, the defendant moved the Court to continue his cause, upon the ground that he could not go safely to trial, on account of the public excitement against him in the body of the County; that the alleged offence had been recently committed, and exaggerated reports had gone forth, tending to influence and increase such excitement ; and that there had not sufficient time elapsed to allay such excitement, and to correct the strong prejudices produced by it against the defendant. Had the defendant rested his application for a continuance of his cause, alone upon his own affidavit, as to 'the excitement and prejudice in the public mind of the County, against him, we will not say that his cause ought not to have been *376continued ; but it appears that the defendant, in order to support his own affidavit, as to the excitement in the County, introduced two witnesses, both of whom contradicted, his statement, as to there being any public excitement in the County, against him; so that the Court below, from the evidence before it, adduced by the defendant, properly overruled the motion for a continuance upon that ground.
[3.] The evidence relating to the homicide describes one entire ltransaction. The witnesses state what was done by the defendant, at the time of the hilling. The defendant went to the house of Gurganus, the father of the deceased, with whom the deceased was living, and made use of insulting and abusive language to the deceased. Gurganus, the father, went out to the defendant at the gate, and said to him, “ What are you coming here interrupting us for, we interrupt nobody ?” So soon as this remark was made, the defendant knocked Gurganus down with his gun; whereupon the deceased, who was standing in the piazza, ran out to her father, when the defendant raised his gun and shot her dead.
The assault upon Gurganus, by the defendant, was a part of the transaction, and shows that he came to the house with an evil and hostile intention, against the inmates of that house; and there was no error by the Court below, in permitting the witnesses to state all that was done by the defendant, at the time of the hilling, as being connected with, and a part of the entire transaction, either exculpatory or as evidence of his innate depravity and malicious intention. After a careful examination of this entire record, we can find no legal ground to disturb the judgment of the Court below.
Let the judgment of the Court below be affirmed.