Logan

delivered the opinion of the Court.

Upon the trial of this cause in the Court below, the prisoner moved for a continuance, on the ground of the absence of his counsel from sickness, and in support of the application, produced the affidavit of the junior counsel in the case, stating that the senior counsel, to whom had been entrusted the chief care and management of the case, was unable to attend the trial in consequence of indisposition, and that he, the junior counsel, was not only too unwell to try the cause, but was also incompetent, being almost entirely ignorant of the facts of the case, and the grounds of the defense. The Court below overruled the motion, and compelled the prisoner to go to trial. The jury found a verdict of guilty, from which, as well as the refusal of the Court to continue the cause, the prisoner appealed.

It is now contended that the power to grant continuances is a discretionary power, which cannot be reviewed by this Court. We have repeatedly held that, in all cases of discretion, the Court, below must exercise a sound and proper discretion, and if it appeared that this had not been done, we would supervise the action of the Court.

We regard the…