#### STATE versus SHEPPARD.

INDICTMENT for an assault and battery. At the trail defendant prayed a continuance, on account of the absence of in material witness.

He was asked what that witness would prove? and on answering that he intended to prove by the testimony of that witness that the prosecutor had given him very great provocation.

By the Court,

Ashe, J. and Williams, J.

this will only go in mitigation of the fine. Let the cause be tried, and if there be in verdict against you, we will postpone giving judgment until next term; in order that you may have the benefit of the testimony of your witness.

The cause was tried, and there being a verdict against the defendant. He was bound over to the next court.

Ex relatione Arnett.