Page:Stewart v. State.pdf/6

Rh judge failing to hold that term, it was continued over by operation of law. The September term of the Hot Spring circuit court was held by the judge of the 6th judicial circuit, who had exchanged courts with the judge of the 2d circuit, to which the county of Hot Spring belonged. The judge of the 6th circuit, thus presiding, had been the attorney for the State engaged in the prosecution at the time the indictment was preferred against the accused by the grand jury of Clark county, and, for that reason, considering himself incompetent to try the cause, it was ordered to be continued. At the March term, 1850, the accused obtained a continuance upon his affidavit of the absence of material witnesses on his behalf. At the September term, the accused, on Monday, the first day of the term, obtained alias attachments for his witnesses, and the calling of the cause was delayed until the Thursday following. In the afternoon of that day, the cause was called for trial, and the defendant asked a postponement until the next morning, in order to allow time for the arrival of his witnesses. This was refused, and the defendant then presented his application for continuance, on account of the absence of those witnesses, which application was overruled. On Friday morning, the defendant filed his motion to quash the venire, and set aside the panel of petit jurors returned for the trial of the cause, for certain informalities alleged in the writ of venire facias, that it did not run in the name of the State, and did not specify the cause for the trial of which the sheriff was commanded to bring the jurors into court. Notwithstanding these defects in the writ of venire facias were doubtless amendable, and might, if need be, be amended according to the truth of the matter, on the application of the attorney for the State, because the misprision of the clerk in issuing the venire facias, was clearly one of those defects or imperfections in matters of form not tending to the prejudice of the defendant, and by reason which the indictment or proceedings therein could not be impaired or in any manner affected, (Rev. Stat., title Criminal Proceedings, sec. 98,) the court sustained the motion, quashed the venire, and set aside the panel returned. The court then ordered the cause to be