35 Tex. 587 | Tex. | 1872
The defendant was indicted and convicted of an assault upon one James Hampton with intent to
The objections raised to the indictment were correctly ¡overruled by the court, especially the exception that the indictment does not charge the assault to have been «coupled with ability to commit a battery. The indictment does charge that the defendant did willfully and maliciously attempt to shoot, kill and murder the said .James Hampton, We think the indictment charges an ¡assault sufficiently definite, and it was a question of •fact whether the charge should be sustained or not.
There is, however, a more serious question presented ¡by counsel for appellant in the fourth assignment, •which is as follows: “The court erred in admitting •the testimony of James Hampton, deceased, given on a ■former trial, over the objections of defendant.” There ¡appears to have been a former trial in this case, and that James Hampton then appeared in court, and was •sworn and testified in the case; but that between the first and last trial he had died, and the counsel for the State was permitted, on the latter trial, to prove by ¡another person what Hampton had testified to on the first trial.
The question presented in this assignment has been ithe subject of much legal discussion and the foundation for many and waded judicial decisions. The autliori
In the case of the United States v. Macomb, Judge Drummond, in delivering the opinion of the court, assumes the rule in civil causes as no longer an open question, and then argues with great force, and so decides, that there should be and really was no difference in the application of the rule to civil or criminal cases, and cites United States v. Wood, 3 Washington C. C., 440; King v. Joliffe, 4. Term R., 290, and others. But by far the ablest opinion we have had the pleasure of reading on the question before us, is in the case of Kendrick v. The State, in which Justice Totten seems to have reviewed all the arguments and authority on the
The object of all evidence is to elicit the truth, ia order that the judgment of the court and jury may be informed, that they may in all cases administer strict and impartial justice. It would seem that such a rule should be adopted by our courts, if for no other reason than to protect the rights and interests of the defendants. It is not unfrequently the case that the life or personal liberty of an accused person is dependent upon the knowledge of one individual, and if by accident or otherwise that person should die, the innocent would be left to suffer without remedy, unless the rule of Ohio and Tennessee be fully enforced. We are fully convinced that the rule herein recognized is a rule of humanity as well as of justice.
It is claimed for the defendant in this case, that if the testimony of the deceased witness be permitted to go to the jury at all, then the proof of that testimony should be confined to the exact words of the deceased; that the defendant, by the adoption of such a practice, is deprived of the right of cross-examination, and of confronting the witness face to face, and therefore the proof should be confined to the precise language of the deceased witness. But it should be remembered that, if such a rigid rule were adopted, it would, in nearly every case, completely destroy or render nugatory the rule, as
The evidence adduced on the trial was conflicting and contradictory, but it was for the jury to reconcile that, if possible, and if not, then to give credence to the testimony of such of the witnesses as from their-
There was error, however, in the ruling of the court in refusing to permit the State’s attorney to cross-examine the wife of defendant in regard to her statements made on her examination-in-chief. She could not be ' put on the stand to testify against her husband, nor could she, when on a cross-examination, be questioned in regard to any facts against her husband which had not been drawn out on her examination-in-chief; but that she may be cross-examined in regard to her statements already given, is not prohibited by law, but is demanded by every principle of justice. This question has been several times decided by this court within the last year. But as this error, if corrected, would not probably tend to a different judgment, we will not disturb the same on that account. We have been unable to discover any error in the rulings or judgment of the lower court to which the defendant could properly object, and the same is therefore affirmed.
Affirmed