Fogleman v. State

| Ind. | Nov 15, 1869

Ekazeb, C. J.

This was an indictment for larceny. The appellant was found guilty, and sentenced, after a motion for a new trial had been overruled. Error is assigned upon the overruling of that motion.

The question most pressed by counsel is 'upon the refusal’ of the court to give to the jury the rules of law (as they are supposed by the argument to be) concerning the effect of the testimony of an accomplice. But we cannot perceive that the question is in the case. The State called a: witness who had been charged with some crime—its nature ■ is not disclosed—which had no connection whatever with the offense for which the defendant was on trial. There was nothing in the ease tending to create even the slightest suspicion that the witness was an accomplice, or even guilty of any crime.

This witness was asked, on cross-examination, if on certain occasions he did not declare that he turned state’s evidence in the hope that it would be of advantage to him in his own case, and having answered in the negative,.the court refused to allow him to be contradicted by other witnesses. There was no error in this. The statements imputed were not inconsistent with theLody of his testimony, and would not affect his credit, and, therefore, were not the-subject-matter of impeachment in this way. The assumption that he had turned state’s evidence, i. e., testified when he might have stood on his privilege to be silent, was, we have seen, gratuitous; for he disclosed nothing that he was at liberty to withhold. He did not turn state’s evidence. The? inquiry was, therefore, idle and immaterial. Hor would the statement, if true, show any motive for testifying •falsely—it would be merely a contradiction of a matter not •.affecting the cause on trial.

W. R. Harrison, W. S. Shirley, S. Claypool', and F. P. A. Phelps, for appellant. £>. F. Williamson, Attorney General, for the State.

Judgment affirmed, with costs.