delivered the opinion of the Court:
Thomas and John Hickám, plaintiffs in error, were indicted on the 17th day of July, 1886, by the grand jury of Jackson county, for the murder of Robert Knox. The indictment was returned to the August term, 1886, of the Jackson county circuit court, but no trial was had until the December term of the court, when the defendants were tried and convicted, and sentenced to imprisonment in the penitentiary for ninety-nine years.
At the term of court at which the cause was tried, the defendants filed a petition for a change of venue from Jackson county, on account of the prejudice of the inhabitants of the county against them. The principal ground relied upon in the petition to establish prejudice is, that certain newspapers which circulate in Jackson county published exaggerated accounts of the difficulty which resulted in the murder, and thus the minds of the inhabitants of the county were greatly prejudiced against them. On the hearing of the petition the State’s attorney filed fourteen affidavits, signed by some fifty persons, residents of the county, denying the existence of prejudice against the defendants. The court denied the petition for a change of venue, and the decision is relied upon as error.
Section 22, chapter 146, p. 1095, of the Revised Statutes of 1874, provides: “When the cause for the change of venue is the prejudice of the inhabitants of the county against the defendant, his petition shall set forth the facts on which he 'founds his belief, and the attorney in behalf of the People .may deny the facts stated in the petition, and support his denial by counter-affidavits; and the judge may grant or deny the petition, as shall appear to be according to the right of the case.”
It was not denied, nor was it a question in dispute, that-certain newspapers had published an account of the difficulty, and the homicide of the person alleged to have been murdered by the defendants; but it was set up in the petition that the publication of these articles had produced prejudice in the minds of the inhabitants of the county, and in consequence of such prejudice they could not secure a fair and impartial trial. In the affidavits filed by the State’s attorney no attempt was made to deny the publication of the articles set out in the petition, but the fact that the publication of the articles had prejudiced the inhabitants of the county was expressly denied. Thus the existence or non-existence of prejudice of the inhabitants was the issue made and presented to the court for determination, and it was to be decided according to the right of the case, upon the petition and the denial filed by the State’s attorney, supported by counter-affidavits. We have carefully examined the petition, and the denial supported by affidavits, and while the question presented to the court may not be entirely free from doubt, we are not prepared to say, in view of all the facts, that the decision denying the petition was erroneous. In support of the State’s attorney’s denial, affidavits were presented from leading citizens, residing in different sections of the county, all denying the existence of prejudice of the inhabitants of the county. If a prejudice existed, and was wide-spread in the county, it is unreasonable to believe that reliable men would be so reckless as to come forward and file such affidavits.
After the court denied the petition for a change of venue,' the defendants entered a motion for a continuance, on account of the absence of certain witnesses. The court held the affidavit sufficient, but allowed the State’s attorney to elect whether the cause should be continued, or whether he would admit that the absent witnesses would swear to the facts set out in. the affidavit, if present, whereupon the State’s attorney admitted that the absent witnesses would swear to the facts set out in the affidavit, if present, and the court denied the motion for a continuance. The ruling of the court on the motion is relied upon as error.
In 1885 the legislature passed an act which provides, “that when an affidavit is made for a continuance, * *' * in a criminal case, on the ground of the absence of a material witness, the State’s attorney, or the defendant, as the case may be, shall not be required to admit the absolute truth of the matter set up in the affidavit for a continuance, but only that such absent witness, if present, would testify as alleged in the affidavit; and if it is so admitted, no continuance shall be granted, hut the case shall go to trial, and the party admitting the same shall be permitted to controvert the statements contained in such affidavit by other evidence, or to impeach such absent witness, the same as if he had testified in person: Provided, that the court may, in its discretion, require the opposite party to admit the truth, absolutely, of such affidavit, when, from the nature of the case, he may be of opinion that the ends of justice require it: Provided further, that this act shall not apply to applications for continuance at the same term of the court at which the indictment is found or information filed.” Under this statute, the application being made at the second term, it was a matter resting in the discretion of the court whether the State’s attorney should be required to admit, absolutely, the facts set up in the affidavit, or to admit only that the witnesses would' testify to the facts set up if they were present, and after a careful examination of the record we find nothing showing, or tending to show, that the discretion of the court was improperly exercised.
It is also claimed that the court erred in permitting the People to prove the killing of Henry Brown and the assault upon Mathew Rhodes. The charge against the defendants was the murder of Knox, but Brown was killed and Rhodes was assaulted and cut with a knife in the same fracas, and as the evidence in reference to Brown and Rhodes was inseparable from the evidence in relation to the killing of Knox, it was admissible as a part of one and the same transaction.
It is also claimed that the court gave improper instructions for the People and refused proper instructions. No specific objection has been pointed out to any one instruction given for the People, nor has our attention been directed to any one refused instruction which should have been given. ' As counsel has failed to point out any error of the court in the instructions, we must presume the objection to the ruling of the court on instructions has been abandoned.
Objection, is made to certain remarks of counsel for the People in the closing argument to the jury. What was said has not been preserved by bill of exceptions, and hence is not befgre us for consideration.
Objection is made to the verdict, which found the defendants guilty and fixed the punishment at ninety-nine years in the penitentiary. The period here fixed may seem greater in time than a life sentence, but after all it can only be regarded as a sentence for life, and as such it is warranted by the statute. If, however, it is not a life sentence, it was authorized by the statute, which reads as follows: “Whoever is
guilty of murder shall suffer the punishment of death, or imprisonment in the penitentiary for his natural life or for a term not less than fourteen years.” Here defendants were found guilty, and the imprisonment was fixed at not less than fourteen years. Whether they will live the term out we can not know. The guilt of the defendants was established beyond all doubt or cavil. The murder was a brutal one, unprovoked, and deliberately committed, with no extenuating circumstances. There is therefore no just ground for complaint in regard to the verdict of the jury.
The judgment will be affirmed.
Judgment affirmed.