— Lyon J.
By the Court.
delivering the opinion.
[1.] The object of the continuance was, to procure the testimony of the absent witnesses. The Attorney General having admitted in writing, what the prisoner expected to prove by the absent witnesses, such continuance ceased to be necessary, and the Court was right in refusing to let the case be continued, although previous to the admission, he thought the showing good; the record not disclosing the fact, that the case had already been continued; and, if it had, we do not know that such fact would make any difference, unless the action of the Court had in some way operated to the surprise or injury of the defendant.
[2.] After one of the selected jurors had been excused on account of sickness, it was not irregular in the Court to cause the excused juror’s place to be supplied, the list stricken over, and the trial to proceed.
[3.] Neither should the Court have ordered a mistrial under the circumstances, as the jury had not been charged with the cause.
[4.] If the plaintiff in error attached any importance to the facts expected to be proved by the absent witnesses, as admitted in writing by the Attorney General, he should have introduced and read the admission to the jury as evidence of those facts; that admission stood in place of the witnesses. It was his right to use it, and as evidence. Having failed *684to do so, the facts contained therein were not before the jury, and they could not entertain them. Hence the defendant was not entitled to 'its benefits, for the sole reason that he did not put it in evidence.
[5.] The evidence on the trial having disclosed the fact, that the slave went into defendant’s shop, or store-house, after nine o’clock at night, and before daybreak in the morning, with an empty bottle, and came out with the same filled with whiskey, the presumption of the guilt of the accused, arising from these facts, could not be rebutted by the facts, that the slave’s owner knew that the negro was going there for that purpose, and permitted him to do so; or that the overseer of the negro was present, saw the negro enter and permitted him to do so; nor that the wife of the prisoner, and perhaps, a boy, were in the house with the accused at the time, unless the negro was sent by the owner or overseer for the whiskey; so there was no error in the charge of the Court.
Judgment affirmed.