¶1delivered, the opinion of the court.
¶2Plaintiff in error was convicted at November term, 1874, of the law court of Union City, of selling liquor on Sunday, and'has appealed to this court.
¶3The errors assigned are:
¶41st. The refusál of the court to grant a continuance on account of the absence of his counsel, on account of sick- ,—
¶5. This affidavit shows that he had employed M. H. Card-well as his attorney, and had paid him his fee, and that he was detained from court on account of sickness.
¶6He was compelled to go into trial without his attorney. The result might háve been the same if his counsel had been present, but on the first application for a continuance, and at the second term after the presentment was made, we are of opinion, the cause, for the reasons stated, ought to have been continued.
¶72d. The court charged the jury that they were judges of the facts, and that they take the law to be as charged by the court.
¶8The case of Withers v. The State, MS. opinion at Jackson, at the April term, 1874 [since reported in 3 Leg. Hep., 106, and herein ante, p. 276], is referred to as showing this charge to be erroneous, and in conflict with the established rule of law of this state.
¶9In the case cited, it is held, that a charge that the jury were judges of the fact, but not of the law, but must receive the law as charged by the court, was error in a misdemeanor as well as in a felony case.
¶10Eewerse the judgment.