dence, authorized the jury to find that they were is sued by authority, signed, executed and delivered as charged in the indictment.

Appeal from Fayette Circuit Court. Opinion of the court by Judge Hines, Appellant was indicted on the charge of stealing certain municipal bonds of the city of Cincinnati in the State of Ohio, tried, convicted, and sentenced to the penitentiary for two years.

Counsel for appellant complain, first, that the court erred in refusing a continuance on account of the absence of one Straus, a resident and citizen of Cincinnati, Ohio. The affidavit for continuance shows that Straus was in the habit of visiting Lexington, Ken tucky, the place where the trial was pending, that he had been served with subpoena, and that he had promised to appear at the next term of the court, and it is alleged that appellant could secure his attendance at the succeeding term. It appears that the refusal to grant a continuance for this witness was based entirely upon the fact that he was a non-resident of the State-no question having been made as to the materiality of the evidence, as there could not be, because it is stated in the affidavit that at the time it is attempted to prove that the appellant sold the bonds in the city of Cincinnati, he was engaged in business in the presence of the witness, and at a place different from that which it is attempted to prove that the sale of bonds occurred. The materiality of this evidence is increased by the fact that Dunlap, who claims to have purchased bonds from appeilant, had never before seen him, and as appellant appears to have no marked characteristic of features, form or carriage, by which to distinguish him from the common herd, the probabilities of a mistake in identification are much greater. Ordinarily when the evidence of the absent witness is material, where reasonable diligence has been used to secure his attendance, and there are reasonable grounds made to appear that the presence of the witness can be had by a postponement or continuance, the postponement or continuance should be allowed. Here the materiality is unquestioned. There was no want of diligence on the part of appellant, and, upon the face of the affidavit, which is not contradicted, there appears reasonable grounds to believe that the attendance of the witness could have been had at the next term of court. Whether the witness is a resident of the State, or a non-resident and absent from the State, the inquiry in either case is the same-is the evidence material, has diligence been used to secure his attendance, and are there reasonable grounds to believe that the presence of the witness will be had by a continuance? The question is

not whether the court can enforce the attendance, because, if that were true, a continuance could not be had on account of the absence of a citizen of this State, who was at the time within the jurisdiction of another sovereignty. In neither case could coercive process be applied. The right to a continuance, in either case, would depend upon the probabilities of the witness coming within or submitting himself to the jurisdiction of the court. The court erred in refusing a continu

ance.

Another question is made by counsel as to the admissibility of evidence, which is the more important by the reason of its relation to the question just discussed. Appellant offered to prove by Vanarsdale, who was present in court, that he had for years been intimately acquainted with appellant; that at the time Dunlap testifies to having purchased the bonds of a person answering in general the personal appearance of appellant, he, Vanarsdale, was in the city of Cincinnati and there met, at or about the time of the alleged sale of bonds, a person, who was a stranger to him, so strongly resembling appellant that he twice approached the person with the intention of speaking to him, believing at the time he was appellant, and that he did not discover the mistake, so strong was the resemblance, until he had approached him near enough to extend his hand for the purpose of shaking hands. We see no reason why this evidence was not competent, in substance at least, to throw light upon the question as to whether appellant was the person who sold the bonds to Dunlap. There may be some objection to a portion of what counsel allege they could prove by Vanarsdale, but the outline facts that he knew appellant well; that at the time of the sale of the bonds in Cincinnati the witness was there, and that he met a person who so strongly resembled appellant that he believed the person to be appellant, until closer inspection, are certainly competent upon the inquiry as to whether Dunlap was not mistaken as to the person from whom he he purchased the bonds. Where there are no marked characteristics about the accused, by which he may readily be distinguished from the comonalty, there are but two ways by which he may establish the fact that the accusing witness is mistaken as to identity. The one is to prove an alibi and the other is by such proof as is attempted to be introduced here.

We are also of opinion that the court erred in admitting evidence of character covering the period between the discovery of the perpetration of the offense and the time of the arrest. The discovery that the bonds had been stolen by some one was made on the 4th of April, and

the arrest of appellant on the charge was made on the 12th of May following. The court confined the proof of character to the date of the arrest when it should have been limited to the time of the discovery of the commission of the offense. In the proof of character in aid of the presumption of innocence it is always confined to the impression that the community may have received from the general bearing of the accused, and it is not allowed to extend to particular acts or conduct in special cases. The principal reason why it is not allowed to extend to particular instances of good or bad conduct is that such evidence might raise an unlimited number of collateral issues for which neither the accused nor the Commonwealth would come prepared, and which issues would necessarily becloud the issue of guilt or innocence in the charge under consideration. And it may be said that the rule is a good one for another reason, and, that is, that the growth of character is so subtle that its existence can not always be predicated of or based upon certain acts, or formulated from specific conduct, to which one can point as tangible and satisfactory evidence of the conclusion at which he may have arrived. A single lapse from virtue or a single infraction of the world's code of honor may blast a character, but its growth to good is slow. It is made up of numberless and infinitesimal acts, the individuality of which is lost sight of as they pass, and the aggregation alone remains as a monument to character. A growth so slow, a character so formed, ought to weigh in the consideration of the probabilities that the accused has been guilty of a specific offense, which is inconsistent with it.

Mr. Wharton on Criminal Law, section 638, lays down the proposition, in general terms, that proof of general character, subsequent to the discovery of the perpretration of the offense, is not competent, but all the authorities cited by him in support of the proposition do not support the conclusion. Those cited to which we have had access are cases in which the question does not necessarily arise, although the statement of the law, as indicated by Mr. Wharton, is supported by the expression of opinion in the particular cases. He also cites Commonwealth v. Sacket, 22 Pickering, as supporting the opposite view, but on examination it will be seen that no such question properly arose in that case, and the opinion expressly says that its determination is not necessary in the case. The only other case to which we have had access is that of Brown v. The State, 46 Alabama, 184. In that case the question did properly arise, and the court referring to and disapproving the case of Commonwealth v. Sacket,

22 Pickering, held that the evidence should be confined to the date of the discovery of the perpretration of the offense. But independent of authority we think the reason of the rule applied by the court below, in which the court extended the evidence up to the time of the arrest, would stop it at the time of the discovery of the fact that the offense had been committed. The only reason for stopping the inquiry at either point is that the probabilities of innocence, arising from previous good character, may not be destroyed or embarrassed by the fact that the offense under consideration has been committed. If the inquiry may be extended to the time of arrest it may, upon the same ground, be extended to the moment of the trial. But this can not manifestly be done, because it would cause it the particular offense with which the accused if charged, to destroy previous good character. After the discovery that an offense has been committed, a previous good character may be destroyed and a bad one created by discussion of the circumstances connected with the of fense, as well before as after the formal charge by legal proceedings is had. To permit the inquiry as to character to extend beyond the time of the discovery that the offense had been committed would be to allow evidence, based entirely upon a single transaction, which is contrary to the whole theory upon which evidence of character is admitted in support of the presumption of innocence.

Counsel for appellant make the question that the court below erred in refusing to allow the accused to remain on bail during the progress of the trial. The record shows that bail had been previously given, that the surety on the bail bond was amply good, that he came into court on the calling of the cause and offered to stand on the bond during the trial, and that the court refused to allow this to be done, but ordered the accused to be placed in custody of the officer of the court. At the time appellant made the application to remain on bond, and his surety appeared and offered to stand on the bond, appellant filed an affidavit stating that his freedom from custody was necessary to the preparation and conduct of his case. This we think wás error, and, in view of the refusal of the court to allow a continuance of the cause on account of the absence of Straus, by whom an alibi may have been proved, and in view of the fact that the personal liberty of the accused may have enabled him to secure the attendance of that witness, the error is a reversible one. Section 183 of the Code provides that the accused shall remain in actual custody during a trial for felony, unless his bail appear personally in court, and consent that he may remain on bail, in which case he

shall be placed in actual custody when the case is finally submitted to the jury.

Section 229 of the Criminal Code provides that during the trial of an indictment for felony, the defendant shall be committed to and remain in the custody of the proper officer.

There is no necessary conflict between these two sections. When constructed together as they must be, their meaning is that unless the bail comes into open court and agrees to stand on the bond, the accused must be committed to the care of the officer and remain in custody, but that when the bail appears, is sufficient, and agrees to stand bound on the bond, the accused is entitled to remain on bail until the cause is submitted to the jury.

The next question is as to whether the proof supports the allegations of the indictment. It is alleged that the bonds claimed to have been stolen were of a certain description, issued by the City of Cincianati, Ohio, signed and countersigned by certain persons. The evidence admitted was to the effect that the holder of the bonds purchased them in open market for full value, that they were genuine, and that the person who purchased them from appellant paid full value. Was such evidence competent and did it go to establish the fact that the bonds were issued by authority, were signed, executed and delivered? It should have been observed that the bonds on their face import what is alleged in the indictment as to the signing and execution by authority of the state, and that they were read in evidence. We are of opinion that such evidence was competent, and that from the evidence indicated the jury were authorized to find the existence of all the material facts alleged in the indictment and necessarily put in issue,

For the reasons indicated the judgment is reversed and cause remanded with directions for a new trial.-Kentucky Law Reporter.

moved to strike out certain designated portions of the same. The circuit court granted the motion as to certain portions of the return, and denied it as to certain other portions. The defendants appeal from the portions of the order striking out certain portions of the return, and the relator appeals from that portion of the order refusing to strike out another certain portion of the return, and both appeals were argued together. CASSODAY, J.

Are the rules and practice as to pleadings in ordinary actions applicable in cases of mandamus? mandamus? The provisions of the present statute entitled "proceedings in civil actions

courts of record," relate not only to actions," but also to "proceedings in the circuit courts." Sec. 2593. Section 2600 R. S. provides, that

"The distinctions between the actions at law and suits in equity, and the forms of all such actions and suits, have been abolished, and there is, in this state, but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which is denominated a civil action." Id. Sec. 8. Ch. 122, R. S. 1858. That title also includes chapter 121, R. S., which prescribes "the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are determined." (Sec. 1644 R. S.), and gives the requisites of the only pleadings provided for, to wit: a complaint, answer, reply and demurrer. The statutes also provide, in effect, that whenever any writ of mandamus shall be issued, the person, body or tribunal to whom the same shall be directed and delivered, shall make return, and for neglect so to do shall be proceeded against as for a contempt: Sec. 3450 R. S. And whenever a return shall be made to any such writ, the person prosecuting the same may demur or answer all or any of the material facts contained in the same return; and the like proceedings shall be had thereon for the determination thereof, as might have been had if the person prosecuting such writ had brought his action for a false return: Sec. 3451 R. S. But, notwithstanding the provisions of the statute referred to, it is contended by the learned counsel for the relator that proceedings by mandamus are not affected by the code, but are regulated by the rules of pleading and practice prevailing at common law, and he cites in support of his position, The People ex rel. Lefever v. Ulster County, 32 Barb. 477. In that case the der fendants deraurred to the reply or plea of the relator to a portion of the return, and the court directed judgment for the defendants on the demurrer, with leave to the plaintiffs to amend this plea on payment of costs. That