MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
1. The first error assigned is to the action of the court in overruling a motion for a continuance, requested because of the absence of a material witness for the defence.
That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question. Woods v. Young, 4 Cranch, 237; Barrow v. Hill, 13 How. 54; Crumpton v. United States, 138 U.S. 361; Cox v. Hart, 145 U.S. 376; Earnshaw v. United States, 146 U.S. 60, 68; Means v. Bank of Randall, 146 U.S. 620. It appears that forty-nine days before the case was called for trial, an application was made and granted to have the witness whose testimony was desired, summoned at the expense of the government, the affidavit showing that she was within the jurisdiction of the court. It was not shown that any diligence was used to procure the attendance of the witness; or that any attachment was asked for, although the trial continued for several days, or why the subpœna was not served. The affidavit did not show that the defendant could not make the same proof by other witnesses, or that he could not safely go to trial without the testimony of the witness in question. In fact, all that the affidavit showed that the witness could prove was established by other testimony, including that of the defendant himself. There was clearly no abuse of discretion.
2. The second assignment was to the charge of the court "that the fact that the man killed was a white man might be shown by the statement of the defendant in establishing the corpus delicti."
The charge of the court is not accurately set out in the assignment, but was, in substance, that the fact that Cushing was a white man might be shown by the testimony of the defendant as well as by any other means, or that it might be shown by that in connection with other facts and circumstances.
As there was abundant evidence in the case, outside of defendant's confession, not only that the man had been murdered, but considerable evidence that he was a white man, we think there was no error committed in the charge that the fact that he was a white man might be shown by the testimony of the defendant, as well as by other means, or by that in connection with other facts and circumstances. The fact that the murdered man was a white man had no bearing upon the question of the corpus delicti, or of the fact that the defendant murdered him, and bore only upon the jurisdiction of the court.
3. The next assignment is to the charge "that the corpus delicti could be established by circumstantial testimony, without saying that this circumstantial evidence should be such as creates cogent, irresistible grounds of presumption." Without any request on the part of the defendant to add the qualification
Beyond this, however, any possible misapprehension upon this point would be removed by the charge that the law says that "if the propositions I have named to you make up the crime, and the further proposition that brings the crime home to this defendant are proven beyond a reasonable doubt in the case, that your duty in the premises is imperative: it is to find a verdict of guilty of murder against the defendant. If they are not proven in that way, either one of them — that is, to such a degree of certainty that they come under that legal definition of proof beyond a reasonable doubt — then your duty will be to acquit the defendant." As the court charged the jury repeatedly that the crime and every element thereof must be made out to their satisfaction beyond a reasonable doubt, it is impossible that they could have been misled by the omission of the qualification suggested.
The remaining assignments are either covered by those already considered, or are so obviously frivolous that no discussion of them is necessary. The judgment of the court below is, therefore,