concurring.
*865Tbe law applicable to continuances, as declared in Hewitt's Case, 17 Gratt. 627, is set forth in tbe opinion of tbe court. Tbe rule and tbe exceptions are both clearly stated.
Tbe rule is that tbe affidavit of .tbe prisoner as to. tbe materiality of an absent witness will entitle tbe accused to a continuance, or to time to procure bis attendance. Tbe exception is that it will not so entitle bim if it appears to tbé court that tbe object of tbe accused is to postpone tbe trial, and not to make preparation for a trial.
Tbis is tbe issue addressed to tbe court on tbe motion for a continuance: Is it made in good faitb, or is it a mere pretext for delay? Tbis issue is tendered to and must be decided by tbe court upon all tbe circumstances before it. It is addressed to tbe sound discretion of tbe court, and tbe' exercise of its discretion, while reviewable, will not be reversed unless it plainly appears that it has been improperly exercised.
In the case before us tbe accused made tbe required affidavit, but tbe Circuit Court, after bearing evidence, concluded that bis motion was not made in good faith.
At tbe moment of tbe homicide, there were present in tbe room in which it was committed, tbe deceased, bis wife, bis married daughter, a little child who was asleep, and tbe prisoner. He claims that there were four men on tbe outside of tbe bouse. Tbe wife and daughter say that tbe door was shut, and that they neither saw nor beard any one else at any time. Tbe weight of evidence then was against tbe prisoner. But tbis is not all. It subsequently appeared, by tbe return of tbe sheriff and deputy sheriff, and by their testimony, that no such witnesses were found, and that no such persons dwelt in tbe counties to which .the writs of summons were directed at tbe instance of tbe ac- , cused. It also appears from tbe testimony of tbe prisoner that on tbe night of, and just before tbe homicide, be went into tbe *866store of W. T. Ould, and that be was accompanied to the store by the four men who were on the outside of the Kid house; but Ould says that the prisoner came into his store alone, and that he neither saw nor heard of any companions of the accused.
On the whole case, I am of opinion that the Circuit Court decided the motion for a continuance in accordance with the weight of evidence, as it appeared when the motion was made and disposed of, and that the conclusion of the court was vindicated by all the facts and circumstances of the case as they were subsequently developed; and on the whole case I fully concur with the judgment- of the court.