38 Ark. 498 | Ark. | 1882
OPINION.
According to the usual and regular order in the production of evidence, the State should have called and examined the witness, Ledbetter, before closing its case ; or if for any reason that could not have been done, it might by the permission of the court have called and examined him as its own witness, after the close of the defendants’ case ; but the general course of the examination of witnesses is subject to the discretion of the court, and it may permit, as was done, a departure from the usual order. 1 Green., Ev., secs. 431, 447; 1 Bish. Crim. Pro., sec. 966. The defendants could, if they had wished, have cross-examined him as to the new matter brought out by the State, and we cannot see that any prejudice to them resulted from the irregularity in the examination of the witnesses.
The question the defendants asked Swanson, upon his recall by the State, his answer to which they proposed tocontradiet by Linscott, was not in relation to any evidence-then given by him, but related only to his testimony when on the stand before; and no reason appears to have been shown the court why the contradicting witness could not have been produced before they closed their case. That, as in the case of the examination of Ledbetter, was a matter likewise in the sound discretion of the court, and its refusal to allow them to call the witnesses and so prolong the trial cannot be assigned as error. Whar. Crim. Ev. sec. 495.
The evidence offered as to the assault of the deceased upon the witness Johnson, was very properly excluded. His violent and turbulent character could not be shown by proof of isolated facts or particular acts of violence. It was no part of the res gestaa; 2 Bish. Crim. Pro. sec. 617; Eggler v. The People, 56 N. Y., 642; Franklin v. The State, 29 Ala. 14.
The first, second and third instructions, asked by the defendant, were embodied in the twelfth and thirteenth, already given for the State, and in substance and effect the same; and those given for the State were equally as clear and plain ; and so also was the fifth asked by them, the same as the eighteenth given for the State, and it could have served no useful purpose to have given those for the defendants, and they were properly refused, and we need not consider or express any opinion in regard to them. Sweeney v. The State, 35 Ark., 585; Ford v. The State, 34 Ark., 649.
There was no evidence that the defendants could not have arrested the deceased, if such was their purpose, and they had tried, without shooting him; or that he was, when he was shot, making any resistance to an arrest. Their fourth, eighth, ninth and tenth instructions, were therefore abstract and irrelevant, and were likewise properly refused.
The seventh also was rightly refused, The jury alone might determine the weight to oe attached to the dying declarations of the deceased. Mr. Bishop says: “Judges have sometimes attempted a comparison between the declarations and the testimony of living witnesses as to the weight which the jury should accord them. But evidently such comparisons are impossible, or at least they pertain to the facts of the case, not the law. Like other evidence, they are open to observation, but the jury alone are to decide on their effect, giving them such weight as may seem to them under all the circumstances to be just,” 1 Bish. Crim. Proceed. sec. 1216; Walker and Black v. The State, 37 Tex., 366; State v. McCanon, 51 Mo., 160, The court could only determine as to the admissibility of the declarations, and leave the weight or credit which should be given them to the jury. Judges are prohibited by the Constitution from charging juries with regard to matters of fact, and may not comment upon the evidence.
It is a well settled rule that when a new trial is applied for upon the ground of newly discovered evidence, the application must be corroborated by the affidavit of the newly discovered witness, or if that cannot be had, by the affidavits of other persons. No such corroboration was offered as to the newly discovered facts, that the deceased said to Sparks, the day after he was shot, that if Campbell had not shot just when he did he would have shot Campbell.
The newly discovered evidence, concerning the pistol and ^ cartridges, the defendants expected to produce by Payne, was immaterial and irrelevant, and all the rest of the evidence discovered after the trial would only have gone to impeach the credit of the witness, Swanson, and it is a settled and well established rule, that newly discovered evidence that goes only to impeach the credit of a witness is not a sufficient ground for a new trial. Hill. on New Trials, 385; 1 Gra. & Water on New Trials, 496; Minkwitz v. Steen et al, 36 Ark., 260; Wallace v. The State, 28 Ark., 531; Robbins v. Fowler, 2 Ark., 133.
As the defendant, Moore, has since the appeal was obtained been pardoned by the Governor, we shall refrain from any remarks in relation to the sufficiency of the evidence to sustain the verdict against him.
The verdict against appellant, Campbell, was sustained by the evidence.
The judgment is affirmed.