Indictment for Horse-stealing a Capital Offence.1 On Monday in the second week of the term, the defendant was brought out and charged. Upon being asked if he had counsel, he answered that he had not; that he was not able to employ any; that he had been speaking to Mr. M'CAMPBELL, who had not as yet undertaken for him; upon which the prisoner had a short conversation with Mr. M'CAMPBELL, who informed the Court that he had been retained by the prisoner as his counsel, and desired time to consult with him. The prisoner was permitted, in custody of the sheriff, to retire behind the bar with his counsel. After being absent a few minutes, the counsel and prisoner returned, and Mr. M'CAMPBELL offered an affidavit for a continuance upon the following grounds; that John Coulter, Lydia Baker, and Daniel Martin, living in Anderson county, were material *Page 212 witnesses for the prisoner, that he could prove by them the mare, for the stealing of which he was indicted, was purchased by him of Robert Baker, in that county. That he could not procure their attendance at this term for want of time, since finding of the bill by the grand jury, and that he believed he could procure their attendance at the next term. The prisoner was remanded to afford time for consideration. On Saturday following he was again brought to the bar. Previous to this the counsel for the prisoner had, upon the arraignment of another person from the same county, on Monday, for a similar offence, moved for and obtained a continuance; upon which he was remanded to jail. He also moved to continue, upon a similar affidavit, the case of the State v. Morris, a citizen of the same county, for horse-stealing, which was also continued for consideration.
1 By Act of 1807, c. 83, § 4, the first offence is punished by whipping, branding, imprisonment, and pillory; the second, with death. The affidavit is in the usual form upon which continuances are allowed. No instance having occurred of refusing a continuance in such a case; therefore let the prosecution be continued.