delivered the opinion of the Court.
At a term of the circuit court of Sevier county, begun and held on the third Monday of Februаry, 1859, being the 21st day of the month, the appellant Hellems was tried, and convicted of murder in the second degree, and sentenced to the penitentiary for five years.
It is insisted by the appellant that the court was held at.a time not authorized by law, and that the trial and judgment were therefore coram non judice etc.
By aсt of 6th December, 1850, Gould’s Digest, p. 306, the circuit court for Sevier county was required tо be held on the third Mondays in Februaiy and August in each year.
On the 17th of February, 1859, an act wаs passed declaring that “ the circuit courts of the sixth judicial circuit shall hereafter be holden as follows : to-wit: in the county of Sevier on the first Mondays in February and August in еach year,” etc. etc.
It was impossible for the court to be held, after the passage, of the act, on the first Monday of February, 1859, because that day hаd passed before the date of the enactment. We cannot suppоse that the legislature intended to inconvenience the public by cutting off onе term of the court altogether. The act should not receive such an interpretation, if it is susceptible of a better. It contains no repealing clausе, and we think it did not, by implication, repeal so much of the previous act as rеquired the court to be held on the third Monday of February, 1859. In other words, that it was intended tо operate upon the future February terms of the court, and did so operate.
This case differs from that of Brumley vs. The State,
On the merits of the case, we think there are no grounds for the reversal of the judgment of the court below refusing the appellant a new trial, as we held here before on an application for a suрersedeas.
The appellant killed a young man by the name of Price, by stabbing him in thе breast with a pocket knife. The deceased was some twenty-one or two years of age, the appellant was younger, not fully grown, but larger than the deceased. Some time previous to the fatal rencounter, the parties wеre on a turkey hunt together, when Price imposed upon appellant by taking his gun frоm him, and striking him with a stick; after which he several times threatened the life of Price. On the dаy of the killing, they met, and Price abused him in consequence of remarks he had heard that appellant had made about him. They were on opposite sides of a fence, appellant dared Price over the fence to fight, Price got over the fence, they rushed towards each other, and struck at the same time. Price striking appellant with his fist, and appellant striking him in the breast with a knife, which he had opened, and held in his hand when he dared Price to get over the fence, giving him a mortal wound, of which he died shortly after.
Upon all of the facts of the casе, we think the jury were warranted in finding the appellant guilty of murder in the second degreе, as they did.
It was objected, in the motion for a new trial, that the instructions given to the jury, by thе court, were abstract, and some of them were perhaps subject to this objection, but we cannot conclude, upon the evidence, that the jury werе misled, or that the appellant was prejudiced by them, especially when сonsidered in connection with instructions given on his behalf.
After the appellant had closed his testimony, the court permitted the State to introduce rebutting witnesses, who had not been put under the rule, and this is made a ground of the motion for a new trial.
It is not stated in the bill of exceptions that these witnesses had heard the testimony of thе other witnesses for the State. who had been put under the rule, and examined upon the trial. But if they had, the court had the discretion to admit them, and this went to their credibility, аnd not to their competency Pleasant vs. The State,
Our conclusion, upon the whole record] is that the judgment of the court below refusing the appellant'a new trial should be affirmed.