1. Wiggins was indicted for an assault with intent to murder. On the call of his case he moved to continue on the ground that two of his witnesses were absent. He testified that they had been subpoenaed, that their testimony was material, that he desired them for the purpose of corroborating the testimony of his other witnesses, but that he did not know to what they would testify if they were present. The court refused to grant the continuance; and the trial was had, which resulted in the conviction of the accused. The latter made a motion for a new trial; it was overruled, and he excepted. One of the grounds of the motion for a new trial was the refusal of the continuance. Under his testimony, the court, we think, was right in refusing the continuance. While it is true he said the testimony was material and he wished it to corroborate his other witnesses, it was not for him to determine whether the testimony of the absent witnesses was material. The materiality of their testimony was a question for the decision of the court, and the court could not decide it unless informed of the nature and character of the testimony which the absent witnesses, if present, would give. If the case had been continued and the presence of the witnesses thereafter secured, their testimony might not have been material ; nor can we understand how the accused could have testified that the testimony was material when he stated upon the examination that he did not know to what facts the absent witnesses would testify.
2. The trial judge, after the evidence was closed, without hearing from counsel on either side, announced for the information of counsel that he would give them his views of the law of the case, and thereupon he made an extensive charge upon the law and facts, intimating very strongly that counsel would be confined to the views of the law and the issues of fact which he had presented. The accused excepted to this conduct and made it one of the grounds of his motion for a new trial. We think that the proper practice is, that the judge may indicate his views of the law and how he will charge the *511jury, but that he ought, before doing so, to hear from counsel their views of the law which ought to control the case. Counsel are generally employed some time before the case is tried; and prior to the trial they study the law of the case as applied to the facts they expect to be proved at the trial. If they are diligent, intelligent and skillful, they ought to know, and generally do know, more about the law of the particular case than does the judge, who perhaps has never heard the points made before. When, however, he has patiently heard from counsel on both sides, he ought to know more of the law which governs the case than counsel on either side. Very few judges, if any, know all of the law. My experience of twenty years on the bench teaches me that learned counsel are of great assistance to a judge in arriving at the true law of a case. After a trial judge has heard from counsel, he may then, if he deem it best, announce, in advance of the argument before the jury, the views he entertains upon the issues of law involved in the case; and if his mind is settled in regard thereto, he may indicate how he will charge as to such issues; but we think it is not' proper practice for the judge, before hearing from counsel, to make an extensive and detailed statement as to what the charge will be or to direct the line of argument in such manner as to limit the counsel of the accused, in the argument before the jury, to the issues suggested by the court. There may be other issues or other points of law than those which the judge has suggested, issues and points which, had he heard from counsel, he would have allowed them to argue. Under the practice in our State, counsel are allowed, in criminal cases, to argue to the jury the law as well as the facts, and it would be wrong to deprive the accused of the right of his counsel to present to the jury such views of the law as he may think applicable to the case. In a close and doubtful case, such conduct on the part of the judge would be cause for the grant of a new trial.
3. The court was requested to charge the jury on the subject of justifiable homicide, and refused to do so. We have carefully read the evidence in the case, and find that there was no theory thereunder upon which the alleged assault *512could have been justified. Wiggins obtained the deed by a champertous and illegal contract, and it was not a violation of his rights for Harper, when he saw the deed lying upon Wiggins’s desk, to take it and put it into his pocket. Wiggins, having no legal right to the deed, would not be justified in shooting Harper for taking it, especially when Harper -was running from him.
4. The evidence demanded the verdict, and there was no error in refusing to grant a new trial.
Judgment affirmed.
All the Justices concurring.
AI-generated responses must be verified and are not legal advice.
