By the Court.
McDonald, J.delivering the opinion.
The only error assigned in the record is, that the Court erred in overruling the motion for a new trial, and refusing to set aside the verdict of the jury. The new trial was moved for on ten grounds as will be seen in the foregoing statement. The second ground was abandoned on' the argument, as having been already decided by this Court.
[1.] We see no reason for changing the rule which requires the defendant in criminal cases to announce first, whether he is ready for trial. In England, when the prosecution is in the Court of Kings Bench, the defendant cannot compel a trial. The Attorney General has an absolute control in such cases; and when the trial is at nisi prius, and the prosecution is in the King’s name, the warrant of the Attorney General is necessary for a trial. In all such cases, the accused is compelled to await the pleasure of the Government officer. The hardship of this tyrannical rule has been mitigated, indeed abolished in this State by the penal code of 1833, which makes all indictments triable at the Term of the. Court at which they are found. Cobb 835.
A person indicted for offences not affecting life, may de*225mand a trial, and if not tried at the term of the Court at which the demand was made, or at the next succeeding term, if at both terms there were juries impaneled and qualified to try him, he shall be discharged and acquitted of the offence charged in the indictment. The Act of 1852, Pamp. 242, places criminal cases, in regard to the opening and conclusion of the argument, on the footing of civil cases. These acts do not control the Court, nor were they intended to do it, in the matter which is made the ground of complaint in this assignment of errors; we will not disturb the judgment of the Court therein.
[2.] There was no error in the third assignment The Court may vary, or allow to be varied in form, so as to enable the jury properly to understand them, the questions directed by the statute to be propounded to them to ascertain their competency to try the cause. If the juror had answered the question proposed in the affirmative, it would not have disqualified him. He must have gone to the extent declared in the act.
[3.] The indictment is for assault with intent to murder. The extent of the wound and the nature of it, inflicted on the person on whom the assault was made, when there was one, is always involved in the issue. It has much to do with proving the intent of the assailant. The prosecutor was struck with a gun, and although the prisoner did not inflict the blow, he was present aiding and abetting, attempting to inflict wounds with a knife at the same time. The united acts were evidence of a common intent, and the effects of the blow given ought to have been submitted to the consideration of the jury.
[4.] There was no objection made by prisoner’s counsel to the reading of the witness Suggs’ evidence in the presence ' and hearing of the jury until after it was read.' The objection, if good at any time, came too late.
*226[5.] There is nothing in the record to sustain the sixth ground in the -motion for a new trial. It does not appear that any such question was propounded to .the witness.
[6.] The charge of the Court was given in reference to the evidence submitted to the jury. The prisoner was using a knife and attempting to cut or stab the prosecutor at the time the latter received the blow. In fact, he was defending himself against the knife when he was knocked down. Other parts of the evidence, to which reference will presently be made, might have some influence in support of the charge given by' the Court. There was evidence justifying the charge.
[7.] The verdict of the jury is fully sustained by the evidence. All the circumstances given in evidence show that the prisoner and his brother who gave the blow, had a common intent to murder or inflict other violent personal injury upon the prosecutor, and that the jury had a right to infer and find a murderous intent. They, in company with another person, went to the house of the prosecutor near sunset, on the evening the offence was committed. They told him they had shot one of his hogs, and asked him if he was mad because they had killed his hog. They asked him to go and see it, which he declined to do, but sent negroes, who he said could bring it in and it could be used. Two negroes went with them, who came running back. Soon after, the prisoner having a knife, and his brother a gun, jumped into ' the door. The fight immediately commenced, “Henry King made at the prosecutor,” who attempted to drive him out of the house. While engaged in a scuffle with Henry King, the prisoner felt something ripping behind him, looked around and saw prisoner behind him cutting away with a large knife." He cut his clothes and marked his skin in several places. As prosecutor turned to defend himself against prisoner, the blow' was inflicted with the gun. We think the juiy were warranted in finding a verdict of guilty.
The ninth ground of error is abandoned.
*227The surprise of the prisoner was not a legal surprise. He-was indicted for assault with intent to murder. lie knew that the prosecutor would be a witness; he knéw that other persons, witnesses to the transaction, were absent, and that the persons whom he alleges would testify to statements of the prosecutor which would discredit him, if he testified to the facts in the record to criminate him, and it does not appear that he used any diligence to procure their evidence. Parties must prepare for their defence, and knowing the truth of their side of the ease must prepare to prove and sustain it. The witnesses by whom he expected to prove his innocence,are those who witnessed the whole difficulty, and it does not appear that he made an effort to procure their attendance, '
Judgment affirmed-