Page:Stewart v. State.pdf/4

Rh causes not embraced within the exceptions—the incompetency of a judge exchanging with the regular and competent judge, and the blunder on the part of the prosecution, in issuing an illegal venire. ''The State vs. Phil, 1 Stew. (Ala.) R. 31'', where the prisoner was discharged, under a similar statute.

3. The court erred in overruling the prisoner's motion for a continuance on account of the absence of his witnesses; which was in consequence of a change in the time of holding the court, unknown to them. It would be a misapplication of the rule that every man is bound to know the law, to apply it in this case, and force a prisoner into a trial without his witnesses, because they did not know that the legislature had changed the time of holding the court a week earlier. Courts will, in many instances, relieve against mistakes of law, as well as facts. (Prater, ad. vs. Frazier and wife, 6 Eng. 249.) Though the granting or refusing a continuance rests in the discretion of the court below, that discretion may be overruled by this court, if improperly exercised. ''Hensley et al. vs. Tucker, 5 Eng. 527. The People vs. Vermilyea, 7 Cow. 108''.

4. The prisoner was forced into trial without a list of the venire-men having been previously furnished him: the list furnished him not corresponding with the return to the venire—in some instances, the names being entirely different; in others, only the initial of the given name furnished the prisoner. (Digest, p. 411, sec. 154. 1 Ch. Cr. Law 517. 4 Bl. Com. 351. The State vs. McClendon, 1 Stew. 195. The prisoner was entitled to a list of the jurors summoned to try him, and the challenge by the State of those whose names were omitted, cannot obviate the objection that a true and correct list of jurors was not furnished. The People vs. Bodire, 1 Denio 281. Freeman vs. The People, 4 ib. 9.

5. The court erred in overruling the challenge for cause of two of the jurors, one of whom had formed and the other formed and expressed an opinion as to the guilt or innocence of the prisoner, because they were not impartial jurors, (Bill of Rights,