By the Court. delivering the opinion.
The prisoner on his conviction, moved the Court below for a new trial, and in the motion embraced all the decisions and rulings of the Court prior to and during the progress of the trial. Tho Court overruled the motion and the prisoner .excepted.
[1.] The first ground of the motion is the alleged error of the Court in refusing the continuance of the cause. In crimes of the grade of that charged against the prisoner, motions for continuance must be strict and special. It is *303not sufficient for him to say that he has not been able to take steps towards preparation for his' defence. It should, appear in what respect he has not been able to prepare, as that he has witnesses; what he expects to prove by them; the ground of his expectation ; who they are, and that he has not, on application, had an opportunity afforded him to procure their attendance. The defendant deposes that until the bill was returned into Court he was unadvised as to the nature of the offence which would be charged against him. He knew he would be charged with -homicide, and it was his duty to prepare for the grade of homicide which would constitute the highest offence against the laws. It does not appear that he had a witness who could prove any material fact. He gives the name of George Spivey, but it does not appear, with sufficient distinctness,‘that Spivey knows a single fact. The prisoner stated that he was informed and believed that Spivey would prove certain facts, set forth in the affidavit. He does not even give the name of his informant, when he should have submitted his affidavit, with proof by himself or others, that Spivey was present at the time the act charged upon the prisoner was committed.
[2.] That the public mind was excited against the prisoner by the act, is no cause of itself for putting off the trial. It ought ever to be remembered, in discussing a point like this, that, such is the benignity of the law, the jury are always instructed by the Court, that if a reasonable doubt rests upon their mind of the guilt of the prisoner, they should acquit him; and further, that the Court will not, in cases of conviction of a prisoner charged with a, capital offence, allow a verdict to stand which could have been rendered by a prejudiced jury only. Prior to the Act of 1856, in relation to the qualification of jurors to serve on the trial of persons charged with felonies, this Court had inclined to listen favorably to applications of this sort. Since that time, it is impossible that a party on his trial for such an offence, if he choose to avail himself of all his legal rights, can have an *304unfair trial, unless it be by the perjury of persons put upon him as jurors, or the palpable misconduct of the officers of the law. In this last respect, he is as much liable to imposition and wrong in times free from excitement, as when there is an inflamed state of the public mind. The prisoner is not bound to have as a juror, a person who from having seen the crime committed has formed or expressed any opinion as to his guilt or innocence; or who has any prejudice or bias resting upon his mind against him; or who is not perfectly impartial between the State and himself. We think that the laws fully protect and guard the rights of persons accused of the higher grade of crimes, by wisely providing for them an impartial trial; giving them the benefit of any reasonable doubt of guilt left on the mind of the jury by the evidence ; and, ultimately, by entitling them to a new trial if the verdict be against the evidence, the law, or justice of their case.
[3.] The record in this case shows that the question put to the prisoner by the Solicitor General, as to the source of his information in regard to Spivey, was not intended to counteract the effect of the written showing made by the prisoner for the continuance of his cause, but to enable the Court to have the witness produced at the trial for his benefit, if possible; and-that the decision of the Court in regard to the continuance was not placed upon evidence elicited by the question of the Solicitor.
[4.] The formation and expression of an opinion relative to the guilt or innocence of a prisoner from report, does not disqualify a person from serving as a juror on his trial.
[5.] The evidence shows that the declarations of deceased given in evidence against the prisoner were made when he was in extremity, in the apprehension of death, and when all hope of recovery was gone, and the deceased at the point of death. These declarations were evidence, and properly admitted by the Court.
[6.] There is no error in the charge of the Court to the *305jury that they must believe from the testimony that there was some assault by the deceased on the prisoner, or an attempt by the deceased to commit a serious bodily injury on him, the prisoner, to constitute the crime of voluntary manslaughter. If a charge be not in the very words of the statute, if it be not contrary thereto, it is legal. The terms of the act “to commit a serious personal injury on the person ’killing,” means a bodily injury, and not a personal affront, or a personal wrong. It must be an injury that may deprive of life, and which must be prevented by a resistance of the like sort.
Without going through the evidence in this case, it is suf•ficient to say that the finding of the jury is abundantly supported by the testimony, and that the conduct and act of the prisoner in taking the life of deceased, show an abandoned and malignant heart, which fix upon him the crime and ■guilt of murder.
Judgment affirmed.