6 Mo. 1 | Mo. | 1839
Opinion of the court delivered by
Tpis was a joint indictment against said Garret, Ellison-. Wll Earns, Youüg E, Miller, James Williams, and Presly Bryant, for a felonious assault Committed on Richard Johnson and Polly Johnson h&wifa. Garrett was found guilty in the circuit court, and tóreverse the judgment of that court be appeals to this court. On the trial of the cause the State:
The plaintiff in error also moved for a new trial and excepted to the opinion of the court overruling the motion, the'ae several decisions of the circuit court are assigned for error, and the counsel of the defendant makes the following points:
1st. That the 'court erred in rejecting the evidence offered to prove what Polly Johnson had sworn and said in regard to the description of the appellant. ' •
2nd. That the court erred in rejecting Young E. ^Tiller as a witness, .
3rd. That the court erred in rejecting the evidence of what Lebo had sworn’ on the examination before tfiejus. tines.
“But whenever the credit of a. witness is to be impeached': by proof of any thing that he has said or declared or done.-, in relation to the cause, he is first, to be asked upon cross, examination whether he has said or. declaied or.done, that; which is intended to be proved.. If the witness admits tha-words, declaration or act, proof on the other side, becomes, unnecessary, and an opportunity is afforded to. the. witness, of giving such reasons, explanations, or exculpations, of his conduct, if any there be, as the circumstances may furnish:-' and thus the m hole matter is brought before, the. court at: once, which is the most convenient course.”
Having always understood this to be the law of the ea«e^ am °f that the. circuit court committed error in, rejecting the., evidence to preve the. declarations of Polhr> Johnson the witness..
2nd. An accomplice (2nd Starkie.22) as it seems is a com- - x \ 7 petent witness and may be. examined, if he be willing, al-he is indicted along with others, provided he be not, put upon trial along with the others; for an .indictment as. to-several is several as to each; so if he has pleaded guilty, or seParat#ly convicted, provided judgment has not been-pronounced upon him for an offence which disqualifies him.. The circuit court, in my opinion, committed error themin-not permitting the. defendant- to examine Miller as a wit-
The third point is that the court erred'in rejecting-.the evidence of Lebo’s- testimony given before the.examnitjg. Lebo, it is stated in the. bill of exceptions swore that the appellant Garrett was not guilty of the.- charge mads»» against him. — It is scarcely necessary to say that such tes-inadmisible. It is the, parte of tha witness, to-facts which may he known to him, and'from.these fafffis.. jury under the direction of the. court, find' whether
í?í«t-b. — Judge Keptoh-having been of counsel hi the circuit court dtft apfeit in this-cause..