This killing took place in April, 1866, in Gordon county. The venue was regularly changed at April Term, 1868, by order of the Court, on motion of defendant.
"When the case was called at the place of the new venue, at November Term, 1868, the defendant moved to continue, on his own affidavit, that he only knew, a few days before, that the venue had been changed; that the attorney on whom he relied was not present, and he supposed he did not know of the change of venue; that there were various witnesses absent, who were present at the killing, by whom he could prove that, at the time of the killing, deceased was approaching him in a threatening manner, etc. This showing the Judge overruled, because it failed to state what facts he could prove by each witness, and because the affidavit itself only stated positively that three of the witnesses mentioned were present at the killing, and the Court knew, from its own eyesight, that one of those witnesses was present then in Court, and that three other persons, whether among those named or not did not appear, who were also present at the killing, were also present in Court. The fact was also apparent, that the prisoner had seen and conversed with none of the witnesses of whose absence he complained, and only knew of their acquaintance with the facts by his information from others that they were present. Yet four of those present at the killing were also present in open Court at the trial.
There was nothing in the first motion about insanity. The motion to coutinue was overruled and the case set down for trial.
*504When the hour arrived the defendant, with his plea of not guilty, filed a plea of insanity, and made another motion to continue, on the ground of absent witnesses, to sustain his plea of insanity. This the Court overruled, on the ground, that this ground of continuance ought to have been made witli the other.
When the prisoner was arraigned, the Court required him to plead guilty or not guilty. This he objected to, but proposed to plead insanity. The Court permitted this plea, but required also the plea of guilty or not guilty.
On the trial before the special jury of the plea of insanity, no evidence was introduced on either side, and the Court withdrew the plea and discharged the jury.
After the case had gone to the traverse jury, the prisoner’s counsel objected, that the indictment did not state the residence of the prisoner.
The charges of the Court and failure, are fully stated by the Reporter.
1. Section 4536 of our Code provides, that all exceptions which go merely to the form of an indictment, shall be made before trial. The residence of the defendant is not a material allegation. Its statement is mere matter of form. In practice, it is never proven before the jury. If omitted, and objection is made, it is too late to make it,after arraignment and plea. Code, sec. 4536.
2. In looking through the record in this case, whilst we cannot affirmatively say we approve of the refusal of the Court to grant the motion of the defendant to continue, yet, on the other hand, we are unable to say that we disapprove it. The Circuit Judge has large discretion in continuances. The application is, to a great extent ex parte, at least it is the practice, to hear no counter showing, and there are often circumstances, in the actual surroundings, of which none but the Court below can be a proper judge. This Court will not interfere, unless the Judge abuses the discretion reposed in him by law. It is only then he is in error. Continuances are in the wise discretion of the Superior Court, not of this Court, and it is only when the discretion of the Circuit *505Judge is abused — is unwise — that this Court interposes to control it.
If it be true that the defendant did not know the case was removed to Bartow county until the brief period before the trial, which he fixes, we confess that it would seem he had not time to prepare his case. But here was the record staring him and the Court in the face that the case had been moved at his own instance by an ordei’, at April Term, 1868, of Gordon Court to Bartow county. November Term, 1868, of Bartow Superior Court, gave over six months time for preparation. It was his business to know, and as he makes no explanation of his ignorance, we take it for granted that it was inexcusable. If a man shut his eyes to facts patent and plain, he must take the consequences.
3. That the defendant was in jail in a distant county, is no legal excuse for want of preparation. If this is an excuse he can never be tried at all. The State keeps him secure. That it has a right to do, but we all know if he uses proper diligence he can have his case prepared, even though in jail. He knows his witnesses, and has the State’s officers and subpoenas at his command. Revel vs. The State, 26th Ga., 278.
4. No excuse is given for the absence of counsel. It would be trifling with public justice to hold back her hand because the accused’s lawyer saw fit to absent himself from the Court. 16th Ga. R., 526.
5. Whilst we recognize the soundness of the argument, that justice is the ultimate end of the rules of proceedings, yet it is true, that to a large extent, rules of proceedings are important towards the attainment of justice. Even in a case of life and death the Court must proceed by rule, and not in confusion. A pertinacious and suggestive advocate can have any number of after-thoughts, and suggest indefinitely new views of motions made and decided, until the time fixed by law for the term is exhausted. The rule of Court is imperative. “All grounds of motion for non-suit, in arrest of judgment, and for continuance, etc., must be urged and insisted on at once. And after a decision upon one or more grounds, no others afterwards urged will be heard by the *506Court.” 53 Com. L. Rules. In practice, this rule is often, to the discretion of the Court, relaxed, but we are strongly inclined to think that more business would be done, and far more wisely, if it were strictly adhered to.
6. As we have said, a motion to continue is in effect ex parte, and the Court below not only has a right, but it is his duty to scan closely the very words of the affidavit, prepared carefully, as it is, by counsel, and to judge of it in the light of all the circumstances. Here was a most atrocious crime, a good citizen, shot down wilfully, without the least provocation, at his own door, by a drunken outlaw. Here were present in Court four persons, at least, who stood by and saw it done. And yet, because the prisoner swears that there were others present and saw the deed done, though he has not conversed with them and can not say what they will testify, except from his own knowledge of what took place — he at the same time setting up insanity and mental aberration at the time — the Court is charged to have erred in refusing to continue.
We think it will be pushing caution too far to overrule the Judge in such a case.
We cannot, in looking through this record, escape the conclusion, that this motion to continue was made as an act of finesse, and not for the purpose of getting the truth. We repeat, that the refusal of a continuance is in the sound,. legal discretion of the Superior Court, and not of this Court, and, to make the refusal of the Circuit Judge to grant a continuance a ground of error, it must be made apparent, affirmatively, that the Court below has abused his discretion. We do not mean that he has acted wickedly or with unfairness, though, as a matter of course, that would be abuse, but that he has clearly erred — done the party, perhaps inadvertently, injustice.
This is not a Court of appeals, but of errors, and on matters left by law in the sound discretion of the Court below, it is not enough, simply, that this Court would, so far as the case is before it, have done otherwise, but it must affirmatively appear, that on the whole case, the Judge was clearly *507wrong, before this Court has jurisdiction of an error of discretion. Roberts vs. The State, 14 Ga. R., 6 ; Revel vs. The State, 26 Ga. R., 493; 27 Ga. R., 411.
7. If the prisoner was insane at the commission of the act, he is not guilty; he may prove his condition under that plea. It is, in all crimes, one of the ingredients of the offence that there shall be a joint operation of act and intent, and an insane person cannot, in - a legal sense, .have any intent. Indeed, in murder, soundness of mind, in the perpetration of the act, is a part of the definition of the crime. We can see no necessity, in such a case, for the special provision for a “ plea of insanity” and its trial by a “ special jury.” The section of the Code, by virtue of which it is contended that even insanity at the time of the act is to be tried separately from the plea of not guilty, and by a special jury, is as follows:
“ Whenever the plea of insanity is filed, it shall be the duty of the Court to cause the issue on that plea to be first tried by a special jury, and if found to be true, the Court shall order the defendant to be delivered to the superintendent of the asylum, there to remain until discharged by the General Assembly. ”
It seems to us both absurd and cruel to send a sane man to the lunatic asylum, and we can not think such was the intent of the law makers.
There may perhaps be a propriety in so confining one subject to fits of insanity. Such a person may fairly be considered dangerous to the community, but that one perfectly sane at the time of the trial, free from the insanity which has once made him irresponsible'for his acts, should be condemned by the law to live among madmen, is to us so preposterous, that we can not think such was the intention of the Legislature.
It is true there is other sections of the Code which seems to imply that this section is to be so understood, (section 4579,) but it is hardly fair to insist that every section of so large a body of laws shall be absolutely harmonious.
We are inclined to think the case of a man who is subject *508to frequent fits of insanity, and in one of them has committed a crime, (and in fact such cases are those with which, in practice, we most frequently have to deal,) might come under the law. Such a person may have lucid intervals, but not unfairly may be called insane, and in such cases it may be both mercy to him, and policy in the public, to confine him, but unless it be pleaded that he .is insane, at the trial, or he be one of. the unfortunate class alluded to, subject to fits of insanity, so as to constitute that condition a characteristic one, we are of the opinion that his plea of insanity is part of his plea of “ not guilty,” and that he is not subject, if his plea of insanity be sustained, , to be consigned to the lunatic asylum. He may, and must prove the facts on his trial, and if they show him to have been insane at the time of the act, he is “ not guilty.”
We do not decide that if his plea show not only that he was insane at the time, but that he is subject to fits of insanity, so that he may not inaptly be called an insane man, he is not entitled'to the privilege of the special plea and special trial provided for by this section of the Code. This is not such a case.
That the defendant was insane at the time of the act done, is, in fact, but a branch of the plea of not guilty. If it be true, he has committed no offence, and we see no hardship on him that the Judge, who had pursued the express language of the Code, required him to plead guilty or not guilty on his arraignment. If he saw fit, as one shape of his plea of not guilty, to plead specially his insanity, which he was not bound to do, his plea of not guilty did not interfere. When neither party introduced evidence under the plea, it was right in the Court to withdraw it, and discharge the special jury.
8. The Judge was asked to charge the jury that, if from. any cause they had doubts of the guilt of the prisoner they must acquit him". The Judge refused so to do, and charged that if they had any reasonable doubts which arose from or grew out of the testimony in the case, they must acquit, saying to the jury that doubts “from any cause” were too sweeping. We think the Judge was right. The doubts *509must be doubts pertinent to the matter in issue, arising out of the evidence, or want of evidence, and not from any cause. Juries, in their judgments in criminal cases, occupy the same position as other searchers after truth, with but one exception, the presumption is in favor of innocence, and the guilt of the defendant must not be doubtful. But the rules of belief and the grounds of confidence are the same as in other cases, and the principles of common sense are just as controlling as in other cases. No mawkish sensibility, no skeptical niceties, are to control them, but the plain rules of common sense and common experience.
9. Section 4257 of the Code prescribes that “ the penalty for murder shall be death, but may be confinement in the penitentiary for life in the following cases.
“ 1st. By sentence of the presiding Judge, if the conviction is founded solely on circumstantiál testimony, or if the jury trying the traverse shall so recommend. In the former case it is discretionary with the Judge, in the latter it is not.”
“2d. By Act of the General Assembly.”
In the construction of the Code, the object of the Legislature is to be kept in view. Without doubt that object was not to make new laws, but to codify and make plain the laws already in existence. It is true that in many instances the codifiers have altered the law, and until the Convention of 1865 adopted the Code bodily, there was among the profession some doubts as to the validity of these alterations. Keeping, then, in view the object in the appointment of the compilers, it is but a fair rule of construction to presume that they did not alter the law, except where they have plainly done so, and only so far as they have plainly done so.
The law, before the Code, made the punishment of murder death, except in the single case of a conviction founded solely on circumstantial evidence. In that case, in consequence of the extreme liability of such testimony to deceive, the Judge was authorized, in his discretion, to sentence the convicted person to imprisonment for life.
This was in the descretion of the Judge; the recommendation of the jury had nothing to do with it, except by its *510moral influence. And this was felt to be an evil. Judges sometimes inflicted the death penalty, even in cases of circumstantial testimony. Public opinion has always, in this State, been against the death penalty, in cases of this kind, but in other cases of plain, direct evidence, that mawkish mercy, tvhich hesitates to deal out death to the guilty man-slayer, has never had, in this State, much currency. We are inclined against a construction, which assumes the codifiers, without any public demand, for the alteration, to have intended to introduce so vital a change into our criminal law.
We do not, therefore, accede to the construction which the Court below has put upon the Code, to-wit: Tha>t in all cases of murder, it is the right of the jury, if they have any good reason, to authoritatively recommend, in lieu of the death penalty, imprisonment for life. We think the old law, and especially the retaining in the section, the case of “conviction, on circumstantial evidence,” are a key to the proper construction of this section of the Code. The death penalty is prescribed, except in cases of circumstantial evidence.
As we understand the language of the Code, it does not authorize the death penalty to be commuted in all cases by the mandatory recommendation of the jury. The punishment of murder is still death by the law, except in cases of circumstantial evidence. If the conviction is founded solely on such evidence the jury may recommend such commutation, and their recommendation is mandatory and final. If they fail so to recommend, it is still in the discretion of the Judge so to commute. But neither the Judge nor the jury have power to commute the death penalty to imprisonment for life, except in cases where the conviction is founded solely on circumstantial testimony. To give the words of the Code any other meaning would, it seems to us, be to stretch the language of the codifiers contrary to the intent of their appointment. It will be noticed, too, that unless the clause “if the jury so recommend,” is confined to the case of conviction founded on circumstantial evidence, we will be driven to the absurd result that in such cases the fate of the prisoner is wholly *511with the Judge. In the former case, it is said, it is discretion^ with the Judge, in the latter it is not. What is the former case? “If the conviction is founded solely on circumstantial testimony.” It seems to us that the language of the law can be more exactly conformed to by understanding that it was simply the intent to give the jury a mandatory power to commute, in case of a conviction founded solely on circumstantial testimony, and if they failed to exercise that power, to give the same discretion to the Court. Otherwise, also, we would be driven to the remarkable conclusion that the jury might, in all cases, authoritatively recommend the commutation, while the discretion of the Judge could only be exercised in the single case of a conviction founded solely on circumstantial cevidence. The division of the section immediately after the words “following cases” into paragraphs, marked 1 and 2, in the first of which is included as one “ case ” the language we have quoted, and in the 2d, the words “By Act of the Legislature,” indicates that the whole section included in paragraph 1 is a case in the sense intended, by the words following cases, in the second line.
• The Judge, in this case, gave the prisoner a more favorable charge in this point than, as we have held, he was entitled to. He told them that they might, if they could find any palliating circumstances, recommend the commutation. If the qualification be wrong, it did the prisoner no harm, as such recommendation was not in the power of the jury. This was a plain case of murder — wicked, reckless, causeless murder — and the proof positive and direct. If ever a jury was right this one was. Mercy, in such at case, would be cruelty to society. Violence and homicide-have too long been the reproach of our State. And whilst-we would always insist on a strict adherence to the law, yet we have no fancy for refinements, to clutch from his merited fate one so lost to all care for human life, as is exhibited by the facts of this record. Too many crimes remain, in this State, unpunished; too many criminals go unpunished of justice, until our brother’s blood cries out, as did Abel’s. Hu*512man life, peaceful human life, needs for its protection, that, the laws against murder shall be enforced, and we can not,, for slight causes, delay the march of punitive justice.
Judgment affirmed.