Wheeler, J.
The rules governing applications for the con*453tinuance of causes, are, in general, the same both in civil and criminal cases. (Rex v. D’Eon, 1 W. Bl. 515, 3 Burr. 1415 ; State v. Lewis, 1 Bay, 1, 2 ; The People v. Vermilyea, 7 Cow. 369.) The statutory provisions on the subject do not seem to be materially variant. (Hart. Dig. Art. 815 ; Laws 5th Legis. p. 72, Sec. 85.) “The rule,” (said Sutherland, J., in The People v. Vermilyea, 7 Cow. 390,) “is substantially the same “ in civil and criminal cases ; though in the latter, the author- “ ities all agree that the matter is to be scanned more closely, “ on account of the superior temptation to delay and escape “ the sentence of the law.” “ In cases where the common affi- “ davit applies, the Court has no discretion. The postpone- “ ment is a matter of right, resting on what has become a prin- “ ciple of the common law. But where there has been laches, “ or there is reason to suspect that the object is delay, the “ Judge at the Circuit may then take into consideration all' “ the cirtumstances ; and grant or delay the application at Ms “ pleasure. Where the subject takes this turn, the application ‘‘ ceases to be a matter of right; and rests in discretion.”— This doctrine seems to be borne out by the authorities. (2 Cow. and Hill Notes to Phil. Ev. Note, 353.) What was said by the learned Judge, of the common affidavit applies to the affidavit prescribed by the statute. Where the want of proper diligence cannot be imputed, and there is no cause to suspect that the application is for delay, if the affidavit conforms to the statute, the continuance is a matter of right; and its refusal will be error. But it is otherwise, where it appears that the affidavit is not true in fact, or there is reason to believe that the object of the application is delay. (See late cases at Tyler and at this Term.) It is the well settled rule of practice of the common law, that counter affidavits will be received, to destroy the force of the common affidavit. In the leading case of Rex v. D’Eon, (3 Burr. 1513, 1 W. Bl. 510 S. C.,) the issue was on an information for a libel; and in reply to the common affidavit of the absence of witnesses in France, the prosecutor *454showed by counter affidavits, that the libel was printed in the Spring of 1764, several months before which the witnesses named had departed to France, where they resided. The Court held that there could be no use in putting off the trial; that on the whole, comparing the libel and affidavits, the witnesses could not be material. The defendant had made no e£ fort to procure their attendance ; and there was no reasonable1 expectation that they could be obtained thereafter. The Court considered either cause sufficient against the rule to postpone the trial. These causes, neglect and improbability of obtaining the attendance of the witnesses, have been recognized as the subject of counter affidavits in subsequent cases. But affidavits to contradict the general oath of materiality, seem not to have been often received. (2 Cow. and H. Notes, p. 685, and cases cited.) There is no doubt that since D’Eon’s case, it has been the settled common law practice, to receive counter affidavits to show want of diligence, and improbability of any reasonable expectation that the proposed testimony can be obtained at all, or at the time to which it is proposed to postpone the trial. Such too is the practice in some, probably most, of the Courts of this country. (Smith’s case, 3 Wheeler Cr. Cases, 172, 176 ; The People v. Brigham, 1 Cit. H. Rec. 30 ; The Territory v. Nugent, 1 Martin (La.) R. 108 ; 3 Day, 308.)— In criminal cases, especially, we look to the common law for the rule of practice, in the absence of statutes. Our departure from the common law system of pleadings, and blending of cases of legal and equitable cognizance, has caused a corresponding departure from the common law practice in civil cases. Not so in criminal. In the administration of the criminal law, the common law, where not modified by the constitution or statutes, has been held to furnish the rule of decision, as well in matters of practice, as principle. There we find ample authority for the practice of receiving counter affidavits in cases like the present. There was, therefore, no error in receiving the counter affidavit. The weight to be attached to-*455it, or its credibility, was for the decision of the Judge below. Unless there were reason to believe that he had attached an undue weight to it, his having entertained it cannot be deemed erroneous.
The question then is, whether, upon the affidavits, the defendant was entitled to a continuance. We cannot say that he was. In the case of Rex v. D’Eon, before cited, the principles upon which the Courts are to act in postponing the trial of a cause, on»account of the absence of witnesses, are clearly laid down, and have since been received as the settled law in the English and American Courts. To entitle the party to a postponement of the trial three things are necessary : “ 1st. “ To satisfy the Court that the persons are material witnesses. “ 2nd. To show that the party applying has been gulty of no “ laches nor neglect. 3rd. To satisfy the Court that there is “ reasonable expectation of his being able to procure their at- “ tendance at the future time to which he prays the trial to be “put off.” (3 Burr. 1514, 1515.) This was a second application for a continuance, for the same cause as the first. Instead of being more explicit, and showing what were the facts of the case, and what means of information his witnesses possessed, as might have been expected, if the defendant really believed the witnesses were material to his defence, and that their testimony would be favorable to him, and as has been generally held to be necessary after the trial has been postponed at the instance of the defendant once or oftener, (8 East 31, 34; 6 Cow. 577,) the affidavit is less full and circumstantial than the first; stating only, in general terms, “ that he did not kill the said Butler ; but that it was his brother Benjamin Hyde, who killed him.” It must be admitted that this is not a very satisfactory statement of the particular facts proposed to be proved by the witnesses. It is silent as to their means of information, and the occasion and circumstances of the homicide ; and certainly does not contain what the statute seems to contemplate ; or what has generally been required in *456such cases. (1 W. Bl. 436 ; 7 Cow. 385 ; 2 Litt. 230.) When the subject of the proof and the relations of the parties are considered, it cannot be denied that there was reason to suspect that the object was' delay. Where that is the case, all the authorities hold, that the application ceases to be a matter of right, but the Judge is to take into consideration all the circumstances, and grant or deny the application as the truth and justice of the case may seem to require. (Rex v. D’Eon, 3 Burr. 1514.) Many cases might be cited where a postponement has been held rightly refused on this ground, where the affidavit was quite as full, and more full and satisfactory than the present. (Moore’s case, 9 Leigh, 643, 644; Bledsoe v. The Commonwealth, 6 Rand. 673 ; Bellew v. The State, 5 Humph. 567 ; Knight v. The State, Id. 599 ; Wharton’s Am. Cr. L., Motion fob Continuance.) Where there is cause to suspect that the object is delay, it is then proper to receive counter affidavits ; and looking to the counter affidavit in this case, we think the Court was well warranted in not giving credit to the affidavit of the defendant. As respects the witnesses who were beyond the limits of the State, the observations of Brevard, J., in The State v. Fyles, (3 Brev. 304,) may be quoted as applicable to this case. “My opinion, (he said) “ is, that this motion ought to be rejected. On the argument, “ the only ground insisted on, was the refusal of the Court of “ general sessions, for Newberry District, to postpone the trial, “ on affidavits which stated the absence of material witnesses “ for the prisoner, who were beyond the limits of this State. “ If trials for capital offences should be postponed on affidavits “ of this sort, very few cases would ever be tried at all, and “ none at the first Court after the arrest of the offender, unless “he should be willing. Affidavits of this kind ought very “ sparingly to be admitted. For, in Circuit trials, the prison- “ ers, from the time of their commitment may, and ought, to be “ preparing for their defence. The place where they ought to “ be tried is, in most cases, well known, and they have like*457wise a reasonable certainty of the time long before the Cir- “ cnit commences. If the prisoner has had no time or oppor- " tunity to prepare for his defence, this will be a good ground “ for a postponement. It must be admitted that no crime is “ so great, no proceeding so instantaneous, but that upon suffi- “ cient grounds, the trial may be put off; but three things are “ necessary: 1. That the witness is really material, and ap" “ pears to the Court so to be. 2. That the party who appears “ has been guilty of no neglect. 3. That the witness can be “ had at the time to which the trial is deferred. (The King “ v. D’Eon, 1 W. Bl. R.) The witnesses are said to be in Ten- “ nessee. No compulsory process can issue to obtain their “ testimony. The presumption is, that they would not attend “ at another Court, or they would have attended at the trial, “ where the life of the defendant is in jeopardy.” Similar reasons would apply to prevent a postponement on account of the witness said to reside in the State, but who could not be found. The only witness, on account of whose absence there may be cause to doubt whether the defendant was entitled to a continuance, was Hilly Hyde, who had been served with a subpoena. She, it seems, was the widow of the defendant’s brother, by whom he expects to prove that her deceased husband was the guilty party. To say nothing of the reasonableness of such an expectation, considering the counter affidavit, it is impossible to say, that the Court ought to have been satisfied, either that the witness was really material to the defendant ; or that he could derive any benefit from her testi" mony at any future time, to which the trial might be postponed.
But it is insisted that the Court erred in receiving the admissions of the State’s Attorney, that the witness, Hilly Hyde, would testify as stated by the defendant. If the application for a continuance were otherwise sufficient, and it satisfactorily appeared that the defendant was entitled to a postponement of the trial to obtain her testimony, I should be of opinion, *458that the admission as to what she would testify, would not be a sufficient ground for refusing the motion. Upon this point, as to whether any and what admissions will be received as an answer to the motion, there have been various and conflicting decisions. (The People v. Vermilyea, 7 Cow. 369 ; Whart. Am. Cr. L. 835 ; 1 Meigs, 195.) I do not think such admissions ought to be received as a full and fair substitute for the oral testimony of the witness. Nor does it appear that the Court so regarded the admissions in this case. The continuance does not appear to have been refused on that ground.— On the contrary, it was placed by the Judge on a quite different ground; that is, that he was not “ satisfled that the facts alleged by the defendant were true.” In the case of The People v. Vermilyea, the majority of the Court, holding that the admissions were improperly received as an answer to the motion, went on the ground that the application was otherwise sufficient, and was so pronounced by the Judge ; and that a continuance must and would have been granted but for the admissions. (7 Cow. 398-9, Woodward, J.) So in the case of Goodman v. The State, (1 Meigs, 195.) The Court in that case declared themselves of opinion that “ the affidavit did contain sufficient grounds for the continuance of the cause.”— They said moreover, if the Circuit Court had refused to continue the cause upon the ground of the insufficiency of the affidavit, they would have hesitated long before they would, for that reason, have reversed the judgment; notwithstanding their opinion of the sufficiency of the affidavit. “ But, (they “ say,) the record manifests that the Circuit Court thought as “ we do, that the affidavit was sufficient, and refused to con- “ tinue the cause, because the Attorney General offered to ad- “ mit, not that the facts stated in the affidavit were true, but “ that the witnesses there mentioned, would, if present, testify “ as stated by the defendant.” This, they held, was not equivalent to the testimony of the witnesses, and therefore not a sufficient answer to the motion.
The case here was very different. The Court deemed the *459application insufficient; and on that ground, we think, rightly refused the motion. The Judge mentions more grounds than one, which would have been sufficient to warrant the refusal of the motion; as the want of diligence, or any reasonable ground to expect the attendance of the witnesses at another Term of the Court. But as it is evident the main ground on which the Court acted was the want of verity in the affidavit, and the belief that the application was for delay ; and as we think this ground well founded and sufficient, it is unnecessary to examine the question of diligence.
It is evident the continuance must have been refused, for the other causes stated by the Judge. They, at least, were sufficient to warrant its refusal; and the fact of receiving and considering the admissions can have done the accused no injury, and can be no reason for reversing the judgment.
We conclude, upon that single question, and not looking beyond the application, that the Court did not err in refusing a continuance. But in considering the case upon appeal, where the motion for a new trial brings before us a statement of the evidence upon the trial, we do not feel bound to shut our eyes, wholly to the facts of the case, in considering whether the judgment ought to be reversed for the refusal of the Court to grant a continuance. If, upon the trial, there had appeared to be cause to apprehend that a continuance was improperly refused, a new trial must have been granted. But if, on the contrary, it very satisfactorily appears that the application for a continuance could not have been well founded in fact, it must afford an additional reason for refusing a new trial, or to reverse the judgment on that ground. We may suppose a case where a sufficient application for a continuance, on account of the absence of a material witness, has been improperly overruled. Tet, if it should turn out, that during the progress of the trial the witness made Ms appearance, and the defendant obtained the benefit of his testimony, it cannot be supposed that the Court, upon the motion for a new trial,, *460would not be at liberty to look beyond the affidavit; or that this Court, upon appeal, must shut our eyes to the fact that the defendant has had the benefit of the testimony of his witness, ■and can have sustained no injury by the refusal of his motion for a continuance. Surely, in such a case, this Court would not be required to reverse the judgment on that' ground.— Though we have considered the application for a continuance on its own merits, in the abstract, in order to be certain that no injustice had been done the defendant in refusing his motion, we have thought proper to look into the evidence embodied in the record ; and we there find additional cause to be satisfied, that the motion was not improperly refused. We forbear comment upon the evidence. It may suffice to say, that several witnesses, who were eye witness of the homicide, had ample means and opportunity of seeing and observing all that passed, and could not be mistaken as to the author of it, testified positively to the fact, with such circumstantial particularity, and just such diversity as to immaterial matters, which were not likely to make a strong, permanent impression, as to Show that there was no collusion ; and such perfect unanimity as .to the material facts, which were calculated to make a ■strong, abiding impression upon the memory, as to show that they‘Were not and could not be mistaken. It thus appears that there were other witnesses, than those named in the affidavit, by whom all the facts and circumstances attending the fatal scene could be abundantly proved, that the witnesses whose testimony was sought, could not, if present, have testified to the truth of the fact proposed to be proved by them ; and that the affidavit for a continuance, therefore, was not eh-titled to credit.
We have thus looked into the evidence upon the motion for a new trial, which necessarily brings it under review; and we advert to it, not as a ground for affirming the judgment of the Court refusing a continuance ; but as placing it beyond doubt, that no injustice can have been done the defendant by *461refusing his motion : which was rightly refused, on the ground of its want of legal sufficiency.
The only remaining ground on which a reversal is asked, is the ruling of the Court in excusing persons from serving as jurors, whose conscientious scruples in relation to capital punishment, were held a sufficient cause for standing them aside on the motion of the District Attorney. This question was sufficiently examined in the case of White v. The State, at- the present Term, where it was held that excluding such persons from the jury was not error.
We are of opinion that there was no error in the judgment, and that it be affirmed.
Judgment affirmed.