25 S.W.2d 1022 | Ky. Ct. App. | 1930
Affirming.
John Ell Epling was convicted of the crime of carnally knowing a female under the age of eighteen years, and condemned to serve two years in the penitentiary. He has prosecuted an appeal complaining mainly of the failure of the trial court to grant him a new trial upon the ground of newly discovered evidence. Some other incidental contentions are advanced which will be disposed of as the opinion proceeds.
The prosecuting witness testified to several instances of intercourse between her and the defendant, but the commonwealth elected to rely upon a specific occurrence at the home of Mrs. Emily Stewart, on August 6, 1928. After the trial was over, appellant filed the affidavit of Mrs. Emily Stewart, who is his sister, in which she stated that the testimony of the prosecuting witness respecting what occurred at her home on August 6, 1928, was not correct, and that the transaction did not occur then or at all. Mrs. Stewart was not present at the trial, but the defendant learned then that the commonwealth would rely upon the alleged act occurring at her house when she was present. The appellant then manifested no surprise, made no motion for a continuance, *409
and exerted no effort to obtain the presence of the witness. When a litigant is surprised at facts developed at the trial, he must take advantage of it at the time, and may not experiment with the jury, and, if the verdict happens to be against him, obtain another trial. Liverpool L. G. Ins. Co. v. Wright,
Especial insistence is made that prejudice resulted. to appellant's cause from an improper question addressed by the commonwealth's attorney to an impeaching witness offered by appellant to prove that prosecutrix was a woman of bad reputation. The court sustained the objection to the question. Error may not *410
be predicated upon a single erroneous question asked by the commonwealth's attorney to which defendant's objection was sustained. Warman v. Com.,
The judgment is affirmed.