State v. . Columbus Adair .

PeaesoN, C. J.

The main question in this case is, had the Judge the power to keep the jury together, until Wednesday of the third week, and then take their verdict, and give judgment against the prisoners ?

This depends upon the question, had the General Assembly the power to enact “in case the term of a Court shall expire while a trial for felony shall be in pr.ogr.ess, and before judgment shall be given therein, the Judge shall continue the term as long as in his opinion it shall be neeessary for the purposes of the case.” G. G. P., see. 397.

The want of power in the General Assembly to make this enactment is put on Act IN, se,c. 12, “ Tiro State shall be ■divided into twelve judicial districts, for each of which a Judge shall be chosen, who shall hold a Superior Court in each county in said district, at least twice in each year, to continue for two weeks, unless the business shall be sooner disposed of.”

The power of the General Assembly can only be restricted by an express provision oí the Constitution, or by a necessary implication from its provisions; if the terms had been “ to continue for two weeks and no longer,” the restriction would have been express. But no such words are used, and we are at a loss to conceive of any ground for an implication, that a term of the Superior Court should under no circumstances •exceed two weeks. On the contrary it is obvious that the duration of two weeks for a time in each county is fixed on, merely to provide for a eonsecutiveness in the beginning of the terms in the several counties of the district, for the return of process, &c., leaving it to the General Assembly in case of urgency, to make a partial interference with this general arrangement to effect the purposes of justice. That such was the purpose, will appear by reference to sec. 13. “Until altered bylaw, the following shall be the judicial districts, &c.”

So there is no implication beyond that of making an arrangement of districts, and in our opinion the General Assembly had power to make the enactment under consideration.

As to the evidence :

1. The statement of the witness Polly Weston in regard to the manner of the killing of the deceased Steadman, for which the persons were on trial, could not in any way have been disconnected from the circumstances under which the others were killed and she waslarutally injured; this is manifest from her statement, which the reporter will set out, and admits of no further discussion.

2. The testimony of Mrs. Williams, as to what Polly Weston said the morning after the tragedy, and among other thing'3 that she said “she wanted to tell Mrs. Morgan all about .it, arid who did it, before she died, as she expected and believ ed she would die,” was competent in corroboration, and the fact that the woman believed she was at the point of death, made her declarations the more impressive, which surely could furnish no ground for their exclusion. It was the ill fortune of the prisoners, that this additional fact made the evidence more telling against them.

3. The testimony of the witness Ilaws as to the narrative of Polly was properly received ; the circumstance that he af-terwards wrote it down, did not affect its competency, and his writing could only have been referred to, for the purpose of refreshing his memory, and was properly treated as a more memorandum.

4. The fact that Govan Adair was present and heard what his father said, and saw his confusion when told that Polly Weston was not dead, was admissible as a circumstance in corroboration. State v. Smith. The facts under which it occurred do not bring it within the provision, that after the committing magistrate has examined the prosecution and the witnesses in the presence of the prisoner, he shall take the examination of the prisoner, who shall be first warned as to his rights — -what was said and done before Hanes, had no greater or other effect, than if it liad occurred in the presence of any other person. The denial of Govan Adair of all connection, &c., and his silence, were subject to no more restraint, and were as free and voluntary as if Hanes had not been a magistrate. Ilis purpose with theposaa was to make the arrest and not to take the examination of the prisoner.

As the jury was not empanelled and charged with the case, it was within the discretion of Ilis Honor to allow the State the benefit of a challenge “for cause,” so as to secure a jury indifferent, as between the State and the prisoners.

This will be certified to the end, etc.

Per OukiaM. Judgment affirmed.